Showing posts with label right. Show all posts
Showing posts with label right. Show all posts

25 January 2021

Right to vote, contest or dispute election is not fundamental right

It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a
Right to vote, contest or dispute election is not fundamental right
fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination A of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies. In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute was not pressed by the respondents before the High Court.[Para No.6]

11 November 2020

In investigation police should consider the defence put forth by the accused which if investigated fairly, may exonerate him

In Ankush Maruti Shinde The Supreme Court expressed its displeasure against the police for the manner in which it had investigated an offence in which several people were murdered and a woman raped in which, the accused persons, who were members of a nomadic tribe were falsely implicated while, the actual perpetrators of the crime who were identified by the witness's from the register at the police station, where never proceeded or investigated into. Underscoring the importance of a fair investigation, The Supreme Court held "It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book". In the same judgment, The Supreme Court, relying upon an earlier judgment passed in V.K. Sasikala Vs. State - (2012) 9 SCC 771, Highlighted the importance of the police in examining the documents that maybe in support of the accused and held in the following words "As observed by this Court in V.K. Sasikala v. State [V.K. Sasikala v. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself"[Para No.21]

    In Babubhai Vs. State of Gujarat, The Supreme Court examined a case arising from a fight between two groups in which three people died. The police are alleged to have examined the case only from the standpoint of one, completely ignoring the defence of the other. Emphasising on the importance of a fair investigation, the Supreme Court held "The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )". Further, in the same judgement Supreme Court held "Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation"[Para No.22]

In investigation police should consider the defence put forth by the accused which if investigated fairly, may exonerate him
    Thus, fair investigation by the police is an imperative facet inhering in Article 21. It is not an option but a constitutional mandate on the police that when it investigates, it must be done, not from the standpoint of the prosecution alone, but also from the point of view of the accused. It has to consider the defence put forth by the accused which if investigated fairly, may exonerate him. The purpose of investigation is not to secure a conviction of the accused but to unearth the truth relating to the commission of an offence. A partisan investigation is a defective investigation which puts a question mark on the sanctity of the proceedings against the accused. If after taking the defence of the accused into consideration the police is of the view that the accused is not the person who committed the offence, in such a situation he is to be exonerated and the case against him, closed. In the present case, the investigation was initially biased and one-sided. There was even reluctance on the part of the police to accept documents from the accused. Even after the police had received the prurient photographs of the deceased, it never carried out any investigation to examine the motive of the deceased to commit suicide and whether the reason put forth by the Petitioner was plausible. The police have merely taken the material given by the Petitioner and made the same a part of the chargesheet without conducting any investigation into the defence of the Petitioner. The police have merely recorded the statement of the immediate relations of the deceased and filed the chargesheet against the Petitioner. No investigation was conducted to a certain the veracity of the allegations against the Petitioner.[Para No.23]

07 October 2020

Temporary appointment in a service can not be regularised as permanent service

In regard to the petitioner's prayer regarding regularization, reference must be made to the decision of the Apex Court in State of Karnataka vrs. Umadevi (2006) 4 SCC 1 and essentially the observation made in para 15, 16 and 53 which reads as follows:
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudent. In State of Mysore v. S.V. Narayanappa [(1976) 1 SCR 128: AIR 1967 SC 1071] this Court stated that it was a misconception to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409: (1972) 2 SCR 799] this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp. 416-17, para 26) 
"Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

16. In B. N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] this Court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128: AIR 1967 SC 1071], R. N. Nanjundappa [(1972) 1 SCC 409: (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgement. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgement, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme"[Para No.19]

    In my considered opinion, the petitioners cannot rely upon the doctrine of legitimate expectation to seek regularization of employment. The petitioners from the very beginning of their contract were fully aware of the temporary nature of employment and that it would expire within stipulated period unless extended by the Government. The Hon'ble Apex Court in this regard has dealt with this principle in Umadevi (Supra) and held as follows:
Temporary appointment in a service can not be regularised as permanent service
"47. When a person enters a temporary employment or gets engagements as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent of the post.

25 September 2020

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law

Daughter in law threatening her in laws to dis-possess from their own property - mother in law filed suit against her alongwith an application for interim injunction u/s. 151 and Order 39 Rule 1 & 2 - plaintiff-mother in law contended that she is the owner of the suit property on the strength of registered sale deed - trial court refused to grant interim injunction observing that the house is a shared house under the Domestic Violence Act and the daughter in law cannot be forcibly evicted from the same as her belongings are still lying there - appeal by district court allowed - daughter in law prefered revision against order passed in appeal - revision dismissed.

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law
    In view of Krishan Kumar vs Navneet's case (supra) and Varinder Kaur vs Jitender Kumar's case (supra), the parents-in-law of the self-acquired property are the real owners and the daughter-in-law has no right to claim it as shared house and has no right of residence in the self-acquired property of parents-in-law. The daughter-in-law cannot be allowed to live in the house of parents-in-law against their wishes.

    While relying upon S.R. Batra and another vs Smt. Taruna Batra, 2007(1) RCR (Criminal) 403 in Suman vs Tulsi Ram 2015(1) RCR (Civil) 304, it was held that daughter-in-law does not have any right of protection under Section 17 of the Act for the purpose of living in the house belonging to parents-in-law which is exclusively owned by them.

16 September 2020

Oral prayer of default bail u/s.167(2) can be allowed in hearing of Regular Bail Application u/s.439 of Cr.P.C. if chargesheet is not filed within prescribed period

In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.[Para No.40]

Oral prayer of default bail u/s.167(2) can be allowed in hearing of Regular Bail Application u/s.439 of Cr.P.C. if chargesheet is not filed within prescribed period
    We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.[Para No.41]

    Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ‘default bail’, to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav.[Para No.44]

    On 11th January, 2017 when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of ‘default bail’ since the statutory period of 60 days for filing a charge sheet had expired, no charge sheet or challan had been filed against him (it was filed only on 24 th January, 2017) and the petitioner had orally applied for ‘default bail’. Under these circumstances, the only course open to the High Court on 11 th January, 2017 was to enquire from the petitioner whether he was prepared to furnish bail and if so then to grant him ‘default bail’ on reasonable conditions. Unfortunately, this was completely overlooked by the High Court.[Para No.45]

13 September 2020

A stranger to the suit cannot be impleaded under Order 1 Rule 10 of C.P.C. in a suit for specific performance merely to avoid multiplicity of the suits

Doctrine of lis pendency does not annul the conveyance or the transfer made during the pendency of suit.

    Liquidation proceedings are also fixed before the Company Law Board. For impleading a party in a suit for specific performance, two tests are to be satisfied. Firstly, there must be a right to some relief against the plaintiff in respect of suit property. Secondly, that in the absence of the petitioner/proposed defendant, no effective adjudication can be done by the trial Court.In a suit for specific performance, necessary party is that person in whose absence no decree can be passed. Proper party is that person whose presence before the Court would be necessary in order to enable the Court to decide and adjudicate the lis in an effective manner. A person stranger to the agreement to sell cannot be termed as necessary and appropriate party as collateral matters cannot be adjudicated in a suit for specific performance. By allowing such a course, the suit itself will be converted into a complicated suit for title.[Para No.18]

    The scope of a suit for specific performance cannot permit third party claiming to be joint owner in the property in question. A stranger to the agreement/contract making a claim adverse to the title of the defendant by claiming right of co- sharership in the suit property cannot be termed to be necessary party, nor proper party for adjudication of the case on merits. In this context reference can be made to Kasturi vs. Iyyamperumal & Ors., 2005(2) R.C.R. (Civil) 691; Anil Kumar Singh vs. Shivnath Mishra @ Gadasa Guru, 1995(1) R.R.R. 660; Krishan Lal vs. Tek Chand, 1986(2) PLR 616 and Om Parkash and another vs. Rajni Gupta and another, 2008(1) R.C.R. (Civil) 400.[Para No.19]

     The ratio of Kasturi's case (supra) has been reiterated by the Hon'ble Apex Court in Civil Appeal Nos.5522-5523 of 2019 titled Gurmit Singh Bhatia vs. Kiran Kant Robinson and others decided on 17.07.2019. The plaintiff is a dominus litis and he cannot be compelled to contest the suit against a person with whom, he does not wish to contest. In Kasturi's case (supra), the Court held that the question of jurisdiction of Court to invoke Order 1 Rule 10 CPC to add a party, who is not made a party in the suit by the plaintiff, shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. Both the tests which have been discussed in the preceding paras are to be satisfied.[Para No.20]

A stranger to the suit cannot be impleaded under Order 1 Rule 10 of C.P.C. in a suit for specific performance merely to avoid multiplicity of the suits
    The party claiming independent title and possession adverse to the title of the vendor and not on the basis of agreement/contract, is not proper party and if said party is impleaded the scope of the suit for specific performance shall be enlarged and it will become a suit for title and it will involve intricated question of title which is not permissible in law. A stranger to the suit cannot be added/impleaded in a suit for specific performance merely in order to find out, who is in possession of the agreed property or to avoid multiplicity of the suits. A stranger to agreement cannot be impleaded as a party so as to convert a suit of one character into a suit of different character. It is only an assignee by sale in a case of specific performance who can be impleaded as party defendant. Section 19(b) of the Specific Relief Act enables the assignee by sale in a suit for specific performance to be impleaded as party. The aforesaid exception has been carved out in view of nature of suit being a specific performance, wherein the assignee by sale can protect his title and join the proceedings in view of law laid down in Thomson Press (India) Ltd.'s case (supra). It is a settled principle of law that doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties, but on those who derive title pendente lite. This provision does not intend to annul the conveyance or the transfer otherwise to render it subservient to the right of a party to a litigation.[Para No.21]

29 August 2020

appeal u/s.372 of Cr.P.C. seeking enhancement of sentence at the instance of the victim, is not maintainable

Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ‘Appeals’ and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under:
“372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 
appeal u/s.372 of Cr.P.C. seeking enhancement of sentence at the instance of the victim, is not maintainable
  A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in the case of National Commission for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied on the same and dismissed the appeal, as not maintainable.[Para No.9]

05 August 2020

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

    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]

12 June 2020

No government servant has a legal right to be posted forever at any one particular place or at a place of his choice

Even if the order, impugned in the Writ Petition, is, as held by the learned Single Judge, a transfer order, it is well settled that transfer from one place to another is an incidence of service, and is made in the exigencies of administration. No person can claim that he should not be transferred from one place to another. No government servant has a legal right to be posted forever at any one particular place or at a place of his choice. (Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey (2004) 12 SCC 299; Major General J.K. Bansal v. Union of India (2005) 7 SCC 227 ; Union of India v. Janardhan Debanath (2004) 4 SCC 245; National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC 574). Transfer of an employee, appointed to a particular cadre of transferable posts, is an incident of service and is made in administrative exigencies. No government servant has neither a legal right to be posted at any particular place nor any choice in the matter. Transfer is necessary in public interest and efficiency in public administration, and is, normally, not to be interfered with by Courts/Tribunals. (Gujarat Electricity Board v. Atmaram Sungomal Poshani (1989) 2 SCC 602; Public Services Tribunal Bar Association v. State of U.P (2003) 4 SCC 104).[Para No.7]

13 May 2020

Denial of default bail u/s.167(2) of Cr.P.C. amounts to violation of his fundamental right under Article 21 of the Constitution of India

Does denial of default bail available u/s.167(2) of Cr.P.C. amounts violation of fundamental rights if accused?

Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law. So long as the language of Section 167(2) of Cr.Pc remains as it is, I have to necessarily hold that denial of compulsive bail to the petitioner herein will definitely amount to violation of his fundamental right under Article 21 of the Constitution of India.[Para No.14]

05 May 2020

Mere service of notice would not give rise to a cause of action

Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. [Para No.20]


   As cause of action is the bundle of facts to examine the issue of jurisdiction it is necessary that one of the interlinked fact must have occurred in a place where the case has been instituted. All necessary facts must form an integral part of the cause of action. The fact must have direct relevance in the lis involved. It is not that every fact pleaded can give rise to a cause of action so as to confer jurisdiction on the Court in whose territorial jurisdiction it has occurred.[Para No.21]
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