Intention of accused can be gathered from the fact whether the weapon was carried by the accused or was picked up from the spot

The conspectus of the decisions can summarised thus:

The offence to fall within Exception 4 of section 300 of The Indian Penal Code 1860 following ingredients must be fulfilled Viz.(i) that the act was committed without premeditation; ( ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.[Para No.22]

    The intention to cause death as contemplated by thirdly of Section 300 of The Indian Penal Code 1860 can be gathered from following factors:

(i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or several blows.[Para No.23]

Arbitrator can order to array necessary parties but can not close proceeding with permission to file fresh proceeding

After hearing counsel on both sides, we do not have any doubt in mind that the Arbitrator cannot be justified in closing the proceeding abruptly for the mere reason that the other employees whose names found place in the final report were not impleaded. We cannot lose sight of the fact that the reference was made to the Arbitration Court for the recovery of a whopping amount, nearly Rs.18 crores from the appellants and others, who had defalcated money while working in the employment of the Bank. It is shown that the contesting defendants had contended that the suit is bad for non-joinder of necessary parties. But, from the proceedings, it cannot be inferred whether, in the light of the pleadings, opportunity was afforded to the plaintiff Bank for impleading additional defendants and to amend the plaint. Even though it is a quasi-judicial proceedings, having regard to the scope and ambit of Section 70 of the Co-operative Societies Act, we are of the opinion that the said forum has all the powers and trappings of a civil court and any interpretation restricting the scope and ambit would not be in terms of advancement of justice.[Para No.7]

    Even when we are inclined to uphold the finding of the learned single Judge that Ext.P10 cannot stand judicial scrutiny, we are of the definite opinion that it was open to the Arbitrator to invoke the powers under Rule 10(2) of Order 1 of the Code of Civil Procedure. Though the plaintiff is the dominus litis, and has to decide who are the necessary parties to the suit, if the plaintiff does not implead all the necessary parties, it is open to the Court to add any person as party at any stage of the proceedings, if the person whose presence before the Court is necessary for an effective and complete adjudication of the issues involved in the suit. It is the settled proposition of law that a person may be a necessary party in a suit, namely, (a) if he ought to have been joined as a party to the suit and has not been so joined, and (b) if the suit cannot be decided without his presence. Apex Court has repeatedly held that the theory of dominus litis should not be overstretched in the matter of impleading of parties, because it is the duty of the Court to ensure that, if for deciding the real matter in dispute, a person is a necessary party, the said person is impleaded. In order to do complete justice between the parties the power available under sub-rule (2) of Rule 10 of Order 1 CPC shall be invoked by the Court.[Para No.8]

    It is trite that all powers which are not specifically denied by the statute or the statutory rules should be vouchsafed to a Tribunal that it may effectively exercise its judicial function. In this connection, it is apposite to extract the following paragraph from the decision reported in Ebrahim Ismail Kunju v. Phasila Beevi [1991 (1) KLT 861].

"5. The increasing importance of the Tribunals in the vast changing life of the community cannot be ignored by a modern court. A modern ostrich even in the distant deserts may not make such limited use of its eyes. Many valuable rights of the modern citizen are deeply involved with the adjudicator, processes of the Tribunals. Many areas hitherto occupied by courts, are now the domains of the Tribunals. A liberal approach towards their functioning and a larger view about the powers they need, are the requirements of the times. A Tribunal should be facilitated to do all that a court could do in similar situations; and much more than that. Greater speed and a total liberation from the tentacles of technicalities, give a better look and greater efficiency for effectively manned Tribunals. If there be no statutory prohibition, the Tribunal should therefore normally be in a position to ordain its affairs and modulate its procedures in such a manner as to best subserve the interest of the public, and in particular the litigant public."[Para No.11]

Insurance company is not liable to pay compensation for death of third party if vehicle is used as a weapon to murder by crushing down

Whether the brutal killing of two persons by the 7 th Respondent/Driver (who has been found guilty of murder under Section 302 IPC and has been convicted and sentenced to life imprisonment by the Trial Court) using the Truck as a weapon and crushing them down, could be treated as an 'accident' or as 'out of the use of a motor vehicle' so as to award compensation to the legal representatives of the deceased, on the strength of a policy issued by the Appellant-Insurer? The finding of the Tribunal that the said incident is an accident and the Appellant/Insurer is liable to pay the compensation, is put to challenge in these appeals.[Para No.1]

    Coming to the scope for payment of compensation under the MV Act and the coverage of third party risk, Chapter XI has been provided for insurance of the motor vehicles against the third party risk. Section 146 speaks about the necessity for insurance against third party risk to the effect that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the said Chapter. The requirements of policy and limits of liability have been mentioned under Section 147 of the MV Act; whereas the duty of the insurers to satisfy judgments against persons insured in respect of third party risk has been dealt with under Section 149 of the MV Act.[Para No.11]

    As mentioned already, on occurrence of an accident involving use of a motor vehicle, compensation can be claimed either under Section 163A of the MV Act on the basis of a structured formula (where it is not necessary for the Claimants to plead or prove negligence on the part of the Driver or the Owner) or under Section 166 of the MV Act by proving the negligence on the part of the Driver of the offending vehicle. It is quite possible that in a given case, 'murder' can be an 'accident'. If only it amounts to an 'accident', can it lead to a claim petition, to be filed by the Claimants, seeking compensation in respect of such accident because of the use of the motor vehicle either under Section 163A or under Section 166 of the MV Act. The Claims Tribunal envisaged under Section 165 of the MV Act names the Tribunal as 'Motor Accidents Claims Tribunal' and if it is not an accident, no such claim can be held as maintainable, to be entertained by the Tribunal.[Para No.12]

    The question whether a murder can be an accident in a given case had come up for consideration before the Apex Court in Rita Devi (supra). It was a case where some unknown passengers hired an Autorickshaw from an autostand at Dimapur and later, the vehicle was reported stolen and the dead body of the Driver was recovered by the Police on the next day. The Autorickshaw was never recovered and the claim of the owner for the loss of Autorickshaw was considered and sanctioned by the Insurer, satisfying the amount for which it was settled. A claim petition was filed by the legal representatives of the deceased Driver under Section 163A of the MV Act, claiming compensation for the death as having arisen out of and in the course of his employment. The Tribunal held that it was caused by 'accident' coming within the purview of the MV Act and the owner and the Insurer were liable. The Insurance Company took up the matter before the High Court where it was held that there was no motor accident as contemplated under the MV Act and that it was an act of murder. Accordingly, the appeal was allowed and the award passed by the Tribunal was set aside. This led to the proceedings before the Apex Court where the question was subjected to a threadbare analysis; particularly on the point of 'dominant intention'. The Apex Court observed that there are instances where murder can be by accident on a given set of facts and that the difference between a murder 'which is not an accident' and a murder 'which is an accident' depends upon the proximity of the cause of murder. The Apex Court held that if the 'dominant intention' of the act of felony is to kill any particular person, then such killing is not an accidental murder but a 'murder simplicitor'; whereas, in a case where act of murder was originally not intended and the same was caused in furtherance of any other felonious act, then such murder is an 'accidental murder'.[Para No.13]

Extra judicial confession of absconded co-accused cannot be used to record conviction

The prosecution is also relying on evidence of PW No.9 Tapan Mandal to establish that the other accused Kishor Shelar had made extra-judicial confession to him about killing of women by both accused. His evidence is also relied to establish that motorcycle brought by Kishor Shelar was produced by him. The other accused was apparently juvenile in conflict with law. The Judgment of trial Court mentions that, the other accused Kishor Shelar is Juvenile in conflict with law against whom the proceeding is going on before juvenile justice Board. The outcome of the proceedings is not known. Thus, the said accused was not before Trial Court in this proceeding. PW No.9 is silent about words 'Hari Om' being written on number plate of motorcycle. PW No.9 has stated that accused No.2 is absconding, although the investigating officer is silent in that regard. According to him he was working on Vadapav stall of father of accused No.2. The motorcycle belongs to relative of accused. The said accused went to Pune and confessed to him. The accused was arrested and PW No.9 was told to deposit motorcycle. The recovery is not at the instance of accused. It is difficult to accept that the accused would go to Pune and make confession to PW No.9. The witness have not stated as to why accused visited him and whether he stayed with him and what was the nature of relationship between them to confess about crime. In any case it is a extra-judicial confession of accused who is not tried in this proceeding. The owner of motorcycle was not examined. Appellant cannot be convicted on the basis of such extra-judicial confession.[Para No.30]

    The extra-judicial confession is weak piece of evidence. The extra judicial confession is questionable in the present case. The witness did not allude the information to anyone about the confession made by the appellant. In the case of Sahadevan V/s State of Tamilnadu, (2012), 6 SCC 403 referring to the aspect of evidentiary value of extra judicial confession it was observed :-

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspired confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities an does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstance, the court would be fully justified in ruling such evidence out of consideration".[Para No.31]

Revenue authority can not refuse to issue property extract of a property even if an offence is registered in respect of its transaction

It is also stated in Status Report that it was also found during investigation that SGCT Mohinder Singh has purchased land measuring 5 ½ Marlas under Khasra no.497 min situated at Barnai, Jammu, from one, Kiran Bala daughter of Hans Raj resident of Barnai, Bantalab, Jammu, in the year 2012 and sale deed had been executed in favour of alleged accused, Mohinder Singh, for sale consideration of Rs.3.85 Lacs, which was also mutated in his favour. The matter was taken up with Tehsildar North, Jammu, asking him not to allow alienation of the above landed property till further communication from Investigating Agency. Respondents maintain that when accused, Mohinder Singh, became aware about initiation of enquiry, he sold aforesaid piece of land to one, Tanveer Malik (petitioner herein) for Rs.4,68,875/-. The statement of OWP no.1404/2017 IA no.01/2017 witnesses was recorded under Section 161 and 164-A Cr.P.C. Besides, the amount collected by accused, Nirmal Kour and Mohinder Singh, from depositors by way of cheating and fraud, is required to be recovered from them, for which all efforts are being made by respondent and that the investigation of the case is in progress. Thereafter, again on 8 th August 2019 respondent no.2 filed Status Report reiterating the averments made in earlier Status Report and nothing new emerges therefrom.[Para No.5]

  Respondents 1&3 (Revenue Department) have filed their objections, asserting therein that FIR no.23/2014 police Station Crime Branch, Jammu, has been lodged against Nirmal Kour and Mohinder Singh, who have sold the land to petitioner. Respondents have made reference of communication no.CBJ/FIR-23/14/21078 dated 21st December 2015, in which they were asked not to allow alienation of land measuring 5 ½ Marlas falling under Khasra no.497 min situated at Barnai, Jammu, and make necessary entry in this regard in revenue records. Respondents 1&3 maintain in their Reply that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint against seller/vendor and, therefore, petitioner had purchased the land in question legally and was holding its possession peacefully. However, in view of communication dated 21st December 2015, received from Zonal Headquarters, Crime Branch, Jammu, issuance of revenue papers (Fard) has been withheld as respondents have no option but to withhold issuance of revenue paper in order to carry out the directions received from Crime Branch.[Para No.6]

    Petitioner has purchased land in question by way of a Sale Deed. The said Sale Deed has been registered by registering authority, viz. Sub Registrar, Jammu, on 9th July 2014. Registration of a document, in the present case is a Sale Deed, is a final seal to a document to be implemented and carried in revenue records. From the file as also from the Reply, filed by respondents 1&3, it is evident that mutation has been effected in compliance of registration of aforesaid Sale Deed and necessary entries have been made in revenue records by Revenue Department. Neither Sale Deed nor is Mutation under challenge before any court of law and therefore, the same has attained finality.[Para No.8]

    In addition to this, perusal of Reply reveals that respondents 1&3 have categorically stated that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint(s) against seller/ vendor and that petitioner has purchased the land in question legally and was holding its possession peacefully. Once that being the position, issuance of impugned direction contained in communication dated 21 st December 2015, amounts to infringement of constitutional and statutory rights of petitioner. He has purchased the land in question by way of a valid document. Preventing him from enjoying the property amounts to infringement of his constitutional rights as guaranteed under Article 300A of the Constitution of India and a human right as well. Petitioner has every right to obtain revenue excerpts with respect to his aforesaid landed property as also to alienate it in accordance with laws and rules regulating the field.[Para No.9]

Insurance company is not liable to pay compensation to the claimants if cheque of premium issued by vehicle-owner is dishonored before the date of accident

On perusal of the entire record, it is not in dispute that respondent No.6, owner of the offending vehicle, has issued the cheque on 28.02.2014 for Rs.42,335/- towards payment of premium in respect of the offending vehicle. Pursuant to the same, the Insurer has issued a cover note on the very same day. The Insurer deposited the said cheque with its banker on 10.03.2014 for encashment, but the same was dishonoured on 11.03.2014. The same was informed to the Insurer vide cheque return memo dated 11.03.2014. Thereafter, the Insurer has addressed Ex.B5 - letter dated 13.03.2014 to the owner by sending the same through registered post with acknowledgment due to the address furnished by the owner while issuing Ex.B1 - cover note. A copy of Ex.B5 was marked to the RTO informing about the dishonour of cheque as well as cancellation of cover note. The said letter was received by the owner vide Ex.B6, while the RTO under Ex.B7. In Ex.B6 - postal acknowledgment card, there is a signature in proof of receipt of Ex.B5 - letter. It further discloses that the article was booked vide RLAD No.RM838996406IN. The learned counsel for the claimants would contend that signature on Ex.B6 does not belong to respondent No.6 and, therefore, he has not received Ex.B5 - letter. But, the said contention cannot be accepted in view of Exs.B1, B5 and B6. Admittedly, Ex.B5 was sent to the address furnished by the owner under Ex.B1.[Para No.26]

    From the above discussion, it is clear that the cheque issued under Ex.B2 was dishonoured and consequently Ex.B1, cover-note was cancelled by the Insurer. The Insurer also intimated about the dishonour of cheque as well as cancellation of policy to the owner as well as RTO by addressing a letter under Ex.B5 and the said letter was received by the owner under Ex.B6 while Ex.B7 discloses receipt of Ex.B5 letter by the RTO. Thus, there is no valid policy exists as on the date of accident i.e., 04.05.2014. Section 64-VB of the Insurance Act also says that no risk to be assumed unless premium is received in advance. In the present case, the Insurer has not received the premium and, therefore, the Insurer shall not assume any risk. As such, the Insurer is not liable to pay compensation to the claimants - legal heirs of the deceased.[Para No.31]

    As already discussed above, the accident is not in dispute. The claim was under Section 163A of the M.V. Act. The policy was cancelled as on the date of accident i.e., 04.05.2014. The policy was not in force as on the date of accident. Therefore, the appellant - Insurer is not liable to pay compensation to the claimants. It is respondent No.6, owner of the vehicle who is liable to pay compensation to the claimants. Thus, the finding of the Tribunal that the appellant - Insurer has to pay the compensation at the first place and recover the same from the owner is unsustainable.[Para No.37]

If a litigant does not come to the Court with clean hands, he is neither entitled to be heard nor entitled to any relief from any judicial forum

The Supreme Court in the case of 'Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others', reported as (2013) 11 Supreme Court Cases 531 held that it is the duty of the litigant to disclose all material facts and a litigant cannot decide which facts are material and which are not. He must come to court with clean hands and disclose all material facts relating to his case. The Supreme court further held as under:-

"Suppression of fact
42. While dealing with the conduct of the parties, we may also notice the submission of the learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners. 

43. Learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree. 

44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality. 

45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p.1560, para 9) "9. .......It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent." 

46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p.51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."

Casual remarks or replies on social media or press note does not amount to defamation if it does not cause serious harm or potential ill effect on reputation of a person

Defamation - Sec. 499 and 500 of IPC -  Whether a particular statement or words are defamatory or not? How it can be decided and what criteria can be applied?

 On the point what constitutes defamation, it is useful to refer to the ratio laid down in S. Khushboo (supra), which is as follows:

In the case of S. Khushboo (supra), the Supreme Court considered whether a particular statement or words are defamatory or not, how it can be decided and what criteria can be applied. In the said case, the appellant made certain statements about the sexual behaviour of people in Tamil Nadu which were published in a magazine, so many organizations filed the complaint against her on Sections 411 and 500 of Indian Penal Code. The Supreme Court held that a morally provocative statement does not make out any offence. So also the general statement made about the sexual habits of the people in Tamil Nadu does not make out any offence. The Supreme Court gave guidelines that any remark which could reasonably amount to the offence of defamation, is to be verified. The defamation though is a factual question and the statutory defences are available to the accused, the imperative question is whether the allegations in the complaint supported a prima facie case of defamation in the first place.[Para No.39]

    Defamation is broadly defined as false statement, damaging one's goodwill or reputation or image. Article 19 of the Constitution of India i.e., right to freedom, speech and expression gives no licence to any person to defame others as the fundamental right is enjoyed with reasonable restrictions. Generally, there is not much difference in goodwill and reputation of the company. It means a credibility and trustworthiness. Even something true may be also defamation in certain circumstances. Thus, lowering down one's estimation in the eyes of a public is defamation. A person may be dishonest, but he may be holding a reputation of high values. Thus, the right is jus in rem. However, the statement must be understood as defamatory by right thinking or reasonable minded persons. Therefore, there are certain yardsticks to decide whether the statement is defamatory or not, which are as follows :

(i) The statement to be read and understood with a context. It is to be read in its entirety.

(ii) Natural and ordinary meaning of the words is to be followed. What meaning the words would convey to the ordinary man is a litmus test.

(iii) Whether the statement brings hatred, stress, contempt and ridicule, will decide whether it is defamatory or not.

(iv) Imputation of fraud, dishonesty and corruption by rendering sub quality services, causing damage, sub quality manufacturing goods, use of abusive language are the glaring examples of defamation.

(v) Every incorrect statement or written statement or every statement which is disapproved or not liked is not necessarily defamatory statement. In such a case, defamation is taken very subjectively, but the Court has to use reasoning of the ordinary man and adopt objective approach.

    There are certain statements involving shades of irony, innuendo and sarcasm where indirectly or impliedly a person is defamed.[Para No.40]

    At the outset, it is made clear that while assessing the legality of the issuance of process in the offence of defamation, the exceptions laid down in section 499 of the Indian Penal Code are not to be taken into account as that is a defence available to the accused. Therefore, whether the order of issuance of process is correct or not is to be judged only after considering the averments made and the alleged statements made in the complaint.[Para No.41]

    Whether innocuous gossip or trivial accusation will be defamation or whether casual remarks or replies on social media is defamation, etc. are the issues that crop up before the Courts. However, a Judge has to see whether serious harm is caused to the person or it has a potential ill effect on his or her reputation. In the present case, the statements and the words do not manifest ill- will to damage the reputation of the complainant-company but it is a denial of the actions taken by Shapoorji Pallonji Group and Mr.Cyrus Mistry. The Judge has to be cautious while looking at the defamatory statements and has to control personification of his views about public feelings and opinion. It should be strictly a reasonable person's opinion. It is also to be kept in mind that a reasonable person is not a lawyer or a Judge but a common man; a right thinking common man. Thus, the test can be objectively applied.[Para No.44]

Public interest litigation is not a pill or panacea for all wrongs

The petitioner claims to have filed this petition as Pro Bono Publico, questioned for an oblique motive, therefore, this Court is required to first satisfy itself regarding the credentials of the petitioner, the prima-facie correctness of the information given by them because after all the attractive brand name of public interest litigation cannot be used for suspicious products of mischief. It has to be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta or private motive. The process of the Court cannot be abused for oblique considerations by masked phantoms who monitor at times from behind. The common rule of locus-standi in such cases is relaxed so as to enable the Court to look into the grievances complained of on behalf of the poor, deprive, deprivation, illiterate and the disabled and who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. But, then while protecting the rights of the people from being violated in any manner, utmost care has to be taken that the Court does not transgress its jurisdiction nor does it entertain petitions which are motivated. After all, public interest litigation is not a pill or panacea for all wrongs. It is essentially meant to protect basic human rights of the weak and disadvantaged. Public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or public interest seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering justice to the citizens. Courts must do justice by promotion of good faith and prevent law from crafty invasions. It is for this reason that the Court must maintain social balance by interfering for the sake of justice and refuse to entertain where it is against the social justice and public good.[Para No.2]

    In the case of Shri Sachidanand Pandey and another versus The State of West Bengal and others AIR 1987 SC 1109, the Hon'ble Supreme Court observed as follows:-

"Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do no restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative and executive functions. This does not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like decentralizing the judicial system and entrusting majority of traditional litigation to Village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases...
  It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants."[Para No.3]

    In S.P.Anand, Indore versus H.D.Deve Gowda and others (1996) 6 SCC 734, the Hon'ble Supreme Court held as under:-

"18..... It is of utmost importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the Court that he does not rush to Court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the Court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the Court must be careful to ensure that the process of the Court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filing a series of petitions refusing to accept the Court's earlier decisions as concluding the point. We say this because when we drew the attention of the petitioner to earlier decisions of this Court, he brushed them aside, without so much as showing willingness to deal with them and without giving them a second look, as having become stale and irrelevant by passage of time and challenged their correctness on the specious plea that they needed reconsideration. Except for saying that they needed reconsideration he had no answer to the correctness of the decisions. Such a casual approach to considered decisions of this Court even by a person well- versed in law would not be countenanced. Instead, as pointed out earlier, he referred to decisions having no bearing on the question, like the decisions on cow slaughter cases, freedom of speech and expression, uniform civil code, etc; we need say no more except to point out that indiscriminate use of this important lever of public interest litigation would blunt the lever itself."[Para No.4]

Notice under Protection of Women from Domestic Violence Act should not be issued unless the Magistrate gets convinced that the presence of the respondents is necessary for further adjudication of the matter

When admittedly, the present petitioners were not residing with the husband of the second respondent, they could not be considered are the persons belonging shared household as is defined under Section 2(s) of the Act. As such, they are not necessary parties for the adjudication of the dispute in question.[Para No.18]

    In this regard, this court gainfully relies on the judgment of the Hon'ble Apex Court in the case of Shyamlal Devda and others V/s. Parimala, reported in (2020) 3 SCC 14, wherein it is held as under :

8. Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman. Section 20 of the Act empowers the court to order for monetary relief to the "aggrieved party". When acts of domestic violence is alleged, before issuing notice, the court has to be prima facie satisfied that there have been instances of domestic violence.
9. In the present case, the respondent has made allegations of domestic violence against fourteen appellants. Appellant No.14 is the husband and appellants No.1 and 2 are the parents-in-law of the respondent. Appellants No.3, 5, 9, 11 and 12 are the brothers of father-in-law of the respondent. Appellants No.4, 6 and 10 are the wives of appellants No.3, 5 and 9 respectively. Appellants No.7 and 8 are the parents of appellant No.1. Appellants No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10 are the residents of State of Rajasthan and appellants No.11 to 13 are the residents of State of Gujarat. Admittedly, the matrimonial house of the respondent and appellant No.1 has been at Chennai. Insofar as appellant No.14-husband of the respondent and appellants No.1 and 2-Parents-in-law, there are averments of alleging domestic violence alleging that they have taken away the jewellery of the respondent gifted to her by her father during marriage and the alleged acts of harassment to the respondent. There are no specific allegations as to how other relatives of appellant No.14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High Court was not right in saying that there was prima facie case against the other appellants No.3 to 13. Since there are no specific allegations against appellants No.3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed."[Para No.19]

    Applying the legal principles enunciated in the above decision to the case on hand, it is seen in the present case also except making bald statements without there being any specific details as to alleged domestic violence, present petitioners who are the relatives of husband of the second respondent and not residing with the husband of the second respondent, have been arraigned as party respondents only with an intention to harass them.[Para No.20]

    The learned Magistrate before issuing the notice, should have applied his mind as to the existence of prima- facie case as against the present petitioners are concerned.[Para No.21]

    In the impugned order, the learned Magistrate has not even noted that there exists a prima facie case against the present petitioners are concerned. The order dated 26.10.2016 whereby he issued notices to the present petitioners reads as under:

"Date: 26-10-2016 Register as Crl.misc. & put up.
Sd/-
Prl. JMFC., GVT.
Issue notices to respondents through CDPO, Gangavati returnable on 14.11 Sd/-
Prl. JMFC., GVT."[Para No.22]

    On perusal of the above order, it is crystal clear that the order is passed in a mechanical manner. Order does not indicate as to what prompted the learned Magistrate to proceed against the present petitioners also. It is needless to emphasize that issuance of process to a litigant in a matter of this nature should be only after the Magistrate gets convinced that the presence of the respondents/accused is necessary for further adjudication of the matter. The same must be indicated in the order issuing the process, if not in so many words.[Para No.23]

Debt in cash above ₹20,000 in contravention of Sec.269ss of Income Tax Act does not render the transaction unenforceable under N.I.Act

Next, he submitted that the payment of more than ₹20,000/- in cash violates the provisions of Section 269 SS of the Income Tax Act, 1961 which prohibits grant of any loan or advance over a sum of ₹20,000/- in cash. He submitted that since the said loan was in violation to the provisions of the Income Tax Act, 1961 the same was not an enforceable debt. He relied upon by the decision of the Bombay High Court in Sanjay Mishra v. Kanishka Kapoor @ Nikkin and Anr.: 2009 (4) Mah.L.J.155 in support of his contention.[Para No.11]

    The contention that the debt owed by the petitioner was rendered unenforceable by virtue of the provisions of the Income Tax Act, 1961 is also unmerited.[Para No.13]

    Section 269SS of the Income Tax Act, 1961 prohibits making of any payment in cash above a sum of ₹20,000/-. Thus, any person violating the same would attract imposition of penalties under the said Act. However, the same does not render the said debt un-enforceable or precludes the lender from recovering the same.[Para No.14]

Employee on continuous and long-period part-time service has not right to be regularised

In paragraph 8 of State of Tamil Nadu v. Singamuthu [(2017) 4 SCC 113], the Honourable Supreme Court laid down as follows:

"8 Part-time of casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer." (emphasis given) "[Para No.21]

    Going by the ratio decidendi in the above-cited precedents, the law is well settled that merely because a person claims to be in continuous service for a long period, on part-time basis, it does not confer on him any right to seek regularisation of service. The courts should not be swayed by a long period, especially when the scheme of regularisation is absent. Further, there can be no rule of the thumb particularly without the existence of a vacancy.[Para No.22]

Accused is entitled for benefit of doubt when there is unexplained delay in forwarding seized article to the court

The alleged occurrence was on 15.11.2011. Ext.P8 property list shows that the seized substances were produced in the court only on 19.11.2011. The prosecution has not explained the reason for the delay in producing the seized substances, including the samples, before the court. It is not explained what prevented the detecting officer or the investigating officer to produce the seized articles in the court immediately after the seizure. In view of the unexplained delay in producing the seized articles before the court, tampering with such articles at the police station cannot be ruled out.[Para No.39]

   

    There is also no reliable evidence as to who was having the custody of the seized articles till they were produced in the court and in what condition they were kept in the police station. PW3 has given evidence that the properties might have been kept in the police station during the period between 16.11.2011 to 18.11.2011 and they would have been in the custody of the Station Writer. But, the evidence of PW6 Circle Inspector, who conducted the investigation of the case on the date of occurrence, is that the properties were in the custody of PW3 Sub Inspector till they were produced in the court. He has stated that he had received the properties but he entrusted them with the Sub Inspector himself for producing them before the court.[Para No.40]

    To put it in a nutshell, the unexplained delay in producing the seized substances before the court and absence of evidence as to how and in what condition the seized substances, including the samples, were kept in the police station till the date of their production in the court alongwith the circumstance that there is absence of evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, create doubt as to whether seizure of the substances was effected from the accused in the manner alleged by the prosecution. The benefit of that doubt shall be given to the accused.[Para No.45]

School certificate or matriculation certificate be given the highest preference in determining age of accused or victim

Date of birth controversy - different date of birth mentioned in different documents i.e. school register, aadhar card, anganwadi kendra report, affidavit, voter list/ID etc. - which document has to be relied in determining the age of victim or accused?

    Since the central issue, at this stage, in the present case revolves around the question of determination of age of the victim based on divergent ages as indicated by three documents. Such a determination will naturally have a bearing on the culpability of the Petitioner herein in respect of the offences as outlined in the FIR. It is also noticed that such an issue, indicating conflicting date of birth recurringly comes up before this Court. It may not be out of place here to mention that the role of the State in such legislations at hand is like parens patriae. There seems to be a lot of divergence as to the age of a minor person or child which spread across 11 legislations from 14 years of age to 25 years depending on the purpose of the legislation. However, in so far as the Juvenile Justice Act and the POCSO Act are concerned, the age of majority is fixed at above 18 years. Therefore, an exercise must be undertaken to bring a quietus to such an issue in light of some leading precedents of the Supreme Court of India.[Para No.9]

    In Brij Mohan Singh v. Priya Brat Narain Sinha the Hon'ble Supreme Court held that the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it in the discharge of his official duty, the probability of its being truly and correctly recorded is high. On the other hand, it was held that the same probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. In such case the evidentiary value of the document in question under Section 35 of the Evidence Act varies according to the maker thereof. In the case of Umesh Chandra v. State of Rajasthan it was held that oral evidence in respect of age has no value which could necessarily be proved only through documentary evidence. The court herein disbelieved a horoscope and relied upon the records maintained by the school. In Dayachand v. Sahib Singh the Hon'ble Court held that although the tendency of many to have lesser age recorded in school is well known and can be easily appreciated but cannot be accepted as the same was clearly in conflict with the medical evidence. Thus, in the said case medical evidence which observes the physical developments especially with regard to the bone structure formation opine a certain age which trumped the records in the school register. In the case of Vishnu v. State of Maharashtra the Hon'ble Apex Court has chosen to believe the date of birth as indicated in the birth register maintained by the Municipal Corporation and disregarded the date of birth as recorded by the school register. The reasoning to do so has been that the best evidence with regard to the age of the child is that of the parents of the child. It has further held that credence-worthy documentary evidence will prevail over expert witness of a doctor and even ossification test. In the case of Birad Mal Singhvi v. Anand Purohit it was has held that the entries regarding the date of birth contained in the school's register or Secondary School Examination have no probative value and that a person such as the parents of the child who have special knowledge in terms of Section 35 of the Evidence Act, with regard to the age of the child need to give evidence to that effect, in order to prove those documents which reflect the age. In the absence thereof such documents would be of no evidentiary value. In the case of Pradeep Kumar v. State of U.P. the court has relied upon the School certificate as well as the age indicated by medical examination as both of them were consistent and indicated the same age. In the case of Bhoop Ram v. State of U.P. the court disbelieved the medical opinion and instead chose to rely on the date of birth as occurring in the School certificate since the said document had not been disproved by any party and gave the accused the benefit of doubt. In the case of Bhola Bhagat v. State of Bihar the court held that since the object of such laws being socially oriented legislation and intended to be beneficial in nature. An obligation is cast on the court in such cases where a plea is raised with regard to the juvenility of the age of the accused to direct an enquiry to be held and seek a report in that regard. It further suggested that subordinate courts must be issued an administrative direction that whenever such a plea with regard to juvenility is raised. There being a doubt on the said question, it is incumbent upon the court to conduct an enquiry by giving the parties an opportunity to establish the respective claims in order to return a concrete finding with regard to the age. In Ramdeo Chauhan v. State of Assam it was held that in case the school register was not maintained by a public servant in discharge of his official duty, then such an entry would not have a binding evidentiary value. It also held that although medical opinion could not be said to be definitive but in cases where the court was grouping in the dark some amount of guidance could be sought from such an opinion and it could not be discarded altogether. In Ravinder Singh Gorkhi v. State of U.P. it was held that when a particular statute requires the age to be determined in a particular manner, no artificial division could be made between civil and criminal cases and a uniform standard of proof must be followed. The court must endeavor to strike a balance keeping in mind that a benevolent approach needs to be taken. In Babloo Pasi v. State of Jharkhand the court disbelieved the age reflecting in the voters list as no evidence was produced as to the materials based on which such an age had been entered into the said list. In Jitendra Ram v. State of Jharkhand dealing with the issue of juvenility under the Juvenile Justice Act it was held that in the absence of any concrete documentary evidence, it was incumbent upon the court to follow the procedure prescribed under the statute and obtain a medical opinion with regard to the age. In Jyoti Prakash Rai v. State of Bihar the court held that since the School certificate and the horoscope were found to be forged, the court had no other option but to rely on the medical opinion. However, while doing so, the court observed that medical opinion could not be taken to be conclusive but a margin of two years on either side had to be taken and that a better approach would be to take the average of the medical opinion issued by different medical opinions. In Pawan v. State of Uttaranchal the court was disinclined to believe the school leaving certificate which had been obtained after the conviction. In Hari Ram v. State of Rajasthan the court took note of the various provisions of the Juvenile Justice Act and opined that in case of any ambiguity with regard to the age, Rule 12 framed under the Act had to be taken recourse to in order to arrive at the age. In Raju v. State of Haryana the court directed that the age determination be done as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder. In Shah Nawaz v. State of U.P. the court held that Rule 12 categorically provides that the medical opinion from the medical board should only be sought only when the matriculation certificate or school certificate or a certificate issued by a corporation are not available. That being the provision under the rules the court ought not to have overlooked the same especially when such a document was available on record and was credence worthy. In Om Prakash v. State of Rajasthan in an exception the Hon'ble Apex Court found the school certificate to be unreliable and went by the medical opinion as the same was based on scientific medical tests like ossification and radiological examination in order to determine the age of the juvenile. In Ashwani Kumar Saxena v. State of M.P. the court relied on the admission register of the school as clinching evidence. The reasoning that the parents would have given a wrong date of birth was taken to be a specious plea and disbelieved. It was also held that the issue of the juvenility could be raised at any point in time or at any stage of the proceedings. A similar view was taken in the case of Kulai Ibrahim v. State.[Para No.10]

    In Sunil v. State of Haryana in the absence of school leaving certificate and the basis on which the age was recorded in the school register not having been produced the court went by the age as opined by the report of the dentist who had conducted the examination. In State of M.P. v. Munna the court held that the X-ray report of the ossification test could not be believed as the doctor who conducted the examination and opined on the age was never examined and also noticing that in the absence of any other documentary evidence the age was not successfully established by the prosecution.[Para No.11]

    In Jarnail Singh v. State of Haryana, the court for the first time took a view that although Rule 12 deals with a child in conflict with law but by using the judicial tool of reading is held that the same could be extended to determine the age of the victim also. It is a landmark decision in the sense that for the first time the court took note that although there was the legislation in place to determine the age of the accused there was a vacuum with regard to the mode of determination of the age of the victim. Thus by necessary judicial construction it has been held authoritative leave that the same rule, i.e., Rule 12, would be applicable to determine the age of the victim as well. In State of M.P. v. Anoop Singh the court held that minor discrepancies existing amongst two documents is irrelevant as long as the other evidences on record point in a certain direction. In Mahadeo v. State of Maharashtra the court relied on a series of documents which indicated that the age was in a certain range based on the documents which were on record and credence worthy[Para No.12]

Gravity of offence alone cannot be a decisive ground to deny bail

It is improper to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson

    Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:

"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.
    Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first­time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re­Inhuman Conditions in 1382 Prisons."[Para No.8]

Call details marked with objection can not be considered in evidence if its issuing authority is not examined

Though the call details Ex.P.36 marked with objection, the admissibility of the said document cannot be questioned at the belated stage, but the authority, who issued the said document, has not been examined. Therefore, the same cannot be considered in the absence of any material produced to prove that there were conversations between P.W.8 and P.W.1 and P.W.8 and the deceased in view of the dictum of the Hon'ble Supreme Court in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee reported in AIR 2010 SC 1162 wherein at paragraphs 48 and 49 it has been held as under:

"48. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law.
49. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exts. 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial." [Para No.87]

Facts stated in plaint has to be presume correct while deciding application under Order 7 Rule 11

In a nut shell, it can be said that for deciding whether the plaint discloses cause of action or not, the court has to see only the averments in the plaint and the accompanying documents relied upon in the plaint and the facts elicited from the plaintiff by examining him under Order 10 of the Code of Civil Procedure. For the purpose of deciding the application under Order 7 Rule 11 for rejecting the plaint, the court has also to presume the facts stated in the plaint as correct.

    In the instant matter,the court below rejected the application moved by the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. with the following observations:-

"जहाँ तक प्रथम आपत्ति का प्रश्न है आदेश-7 नियम-11 में यह प्रावधान है कि जहाँ वाद पत्र हेतुक प्रकट नहीं करता है वहां वाद पत्र नामंजूर कर दिया जायेगा | वादी द्वारा प्रस्तुत दावे के अवलोकन से यह स्पष्ट है कि वाद पत्र कागज संख्या ए -3 के पैरा 49 में वादी का वाद कारण को करमवार अंकित किया है जिस पर प्रतिवादिनी का कथन है कि वह बिना आधार के और पूर्णतया असत्य है | वादी द्वारा प्रस्तुत वाद कारण सत्य है अथवा असत्य है यह साक्षयोपरांत ही तय हो सकता है | धारा 7 नियम 11 के अधीन वाद पत्र की अपेक्षा केवल वाद हेतुक प्रकट करना है न की इस स्तर पर सत्यता अथवा असत्यता परिलक्षित होनी है | चुकिं वाद पत्र वाद हेतुक प्रकट करता है ऐसे स्थिति में आदेश-7 नियम-11 के अधीन वाद पत्र नामंजूर किये जाने का कोई औचित्य आधार नहीं है |"

    Keeping in view the observations made by the court below while rejecting the application of the appellant under Order 7 Rule 11 C.P.C. read with section 151 C.P.C. as well as the settled legal proposition of law on the point in issue that the plaint filed by the plaintiff can only be rejected when the same is barred by any law or no cause of action has accrued to the plaintiff for filing the same.

Police authorities are not the adjudicators of guilt or innocence of any person

A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial.

A media campaign to pronounce a person guilty would certainly destroy the presumption of innocence.

    It is also necessary to bear in mind that human dignity is recognized as a constitutional value and a right to maintain one's reputation is a facet of human dignity. A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial.
[Para No.24]

   The police or any other agency cannot use media to influence public opinion to accept that the accused is guilty of an alleged offence while the matter is still being investigated. The same is not only likely to subvert the fairness of the investigation but would also have the propensity to destroy or weaken the presumption of innocence, which must be maintained in favour of the accused till he/she is found guilty after a fair trial.
[Para No45.]

   It is also well settled that the right to receive information is one of the essential the facets of Article 19(1)(a) of the Constitution of India. The right to freedom of speech and expression also encompasses the right to information. However, this right is not absolute and may be curtailed if it interferes with the administration of justice and the right of an accused to a fair trial.[Para No.46]

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR

Investigation is the function of the police and writ court cannot be converted as an investigation agency.

   Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy.[Para No.103]

   It is clear from the above provisions in the Cr.P.C., that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.[Para No.104]

   Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.[Para No.105]

Possibility of improvisation should be considered by Special Judge while deciding anticipatory bail in SC & ST Atrocity offences

When facts constituting atrocity are not mentioned in FIR but added in supplementary statement the it does not rule out possibility of improvisation.

   The important point that the learned Special Judge failed to consider is that, there is absolutely no mention in First Information Report of those facts which would attract offence under Atrocities Act. Those facts came to be mentioned in the supplementary statement. The possibility of improvisation should have been considered by the Special Judge. Definitely the ratio laid down in Prithviraj Chavan's case (Supra) is required to be considered and in the said case it has been observed thus, "10. Concerning the applicability of provisions of section 438 of Cr.P.C., it shall not apply tot he cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (I) shall not apply. We have clarified this aspect while deciding the review petitions "

  Therefore, if we brush aside those allegations under the Atrocities Act, what remains is only the offences under Indian Penal Code and Information Technology Act. Those remaining allegations do not require physical custody of the appellant for the purpose of investigation. Time and again this Court is observing the approach of the Special Judges under the Atrocities Act, who are dealing with the bail applications. They are not considering the facts of the case in proper manner and only on the apparent allegations and especially without considering the ratio laid down in Prithviraj Chavan's case (Supra), just dismissing the bail applications, especially the pre-arrest bail applications holding that, there is bar under Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atocities) Act, 1989. Time has again come to remind the Special Judges under the Atrocities Act that, they should consider the ratio laid down in Prithviraj Chavan's case (Supra) and other Judgments of Hon'ble Supreme Court and this Court in proper manner while dealing with the bail applications.[Para No.9]