While deciding CRIMINAL APPEAL NO. 697 of 2006 [Vishram Singh Raghubanshi Versus State of U.P.] the honourable Supreme Court of India has observed that, an apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the “contrition which is the essence of the purging of a contempt”. However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defense, the Court may refuse to accept it. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment, it ceases to be an apology and becomes an act of a cringing coward.
The honourable Supreme Court was dealing with a matter of contemptuous behavior by an Advocate with the Judicial Officer, before whom, the Advocate had allegedly presented a wrong person impersonating him as the accused causing surrender. When there was dispute regarding the genuineness of the identity of the surrendering person, the advocate misbehaved and used abusive language.
The learned Presiding Officer made a reference to the honourable High Court as well as Uttar Pradesh Bar Council.
Ironically, the Uttar Pradesh Bar Council, which is supposed to lay high standards of practice, dismissed the compliant.
However, the Honourable High Court convicted the advocate by refusing to accept the apology tendered by the advocate contemnor.
The honourable Supreme Court considered the factual accepts and ruled that, the apology was tendered only to avoid punishment.
VAKILSAHEB
21 June 2011
19 June 2011
Section 313 of Cr.P.C.
Circumstances not put to the accused u/s 313 of Cr.P.C. cannot be used against him.
While deciding CRIMINAL APPEAL NOs. 1693-1694 OF 2005 [State of U.P. Versus Mohd Iqram & Anr.] the honourable Supreme Court of India has underlined mandatory nature of provisions of S.313 of the Criminal Procedure Code, which offers opportunity to the accused to explain incriminating circumstances and evidence against him.
These observations are made while reversing a judgment of acquittal of the accused, acquitted by the First Appellate Court by setting aside initial order of conviction. The initial conviction was set aside by the First Appellate Court by observing that, in the opinion of the First Appellate Court, the murder, subject matter of the prosecution was committed by the husband of the deceased after committing rape on her. The learned trial Court had acquitted the husband and convicted other accused, who were caught in suspicious circumstances.
While reassessing the evidence, the honourable Supreme Court, has found that, the observations of the learned First appellate court against the acquitted husband of the deceased were not only unwarranted but not permissible in absence of any opportunity to him to explain the suggestions reflected from the opinion of the learned First appellate court.
The honourable Apex Court has also found that, the accused, who were convicted by the learned trial court, though were offered opportunity to explain incriminating circumstances against them, had failed to explain the same and were rightly convicted by the learned trial court and were wrongly acquitted by the learned first appellate court.
Para 13 of the judgment, which underlines the importance of provisions of section 313 of the Cr.P.C. reads as under,
13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide: 13 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200)
While deciding CRIMINAL APPEAL NOs. 1693-1694 OF 2005 [State of U.P. Versus Mohd Iqram & Anr.] the honourable Supreme Court of India has underlined mandatory nature of provisions of S.313 of the Criminal Procedure Code, which offers opportunity to the accused to explain incriminating circumstances and evidence against him.
These observations are made while reversing a judgment of acquittal of the accused, acquitted by the First Appellate Court by setting aside initial order of conviction. The initial conviction was set aside by the First Appellate Court by observing that, in the opinion of the First Appellate Court, the murder, subject matter of the prosecution was committed by the husband of the deceased after committing rape on her. The learned trial Court had acquitted the husband and convicted other accused, who were caught in suspicious circumstances.
While reassessing the evidence, the honourable Supreme Court, has found that, the observations of the learned First appellate court against the acquitted husband of the deceased were not only unwarranted but not permissible in absence of any opportunity to him to explain the suggestions reflected from the opinion of the learned First appellate court.
The honourable Apex Court has also found that, the accused, who were convicted by the learned trial court, though were offered opportunity to explain incriminating circumstances against them, had failed to explain the same and were rightly convicted by the learned trial court and were wrongly acquitted by the learned first appellate court.
Para 13 of the judgment, which underlines the importance of provisions of section 313 of the Cr.P.C. reads as under,
13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide: 13 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200)
04 June 2011
Death sentence for fake encounters
While deciding CRIMINAL APPEAL NOS.1174-1178_OF 2011 [Prakash Kadam & etc. versus Ramprasad Vishwanath Gupta & Anr], the honourable Supreme Court of India while expressing it’s anguish on fake encounters, has opined that, in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murders by persons who are supposed to uphold the law. The honourable Court further observed that, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
The judgment has it’s own literate value. Part of the judgment is reproduced here.
The judgment starts by remembering a poem by Shakespeare
A curse shall light upon the limbs of men;
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy;
Blood and destruction shall be so in use
And dreadful objects so familiar
That mothers shall but smile when they behold
Their infants quarter’d with the hands of war;
All pity choked with custom of fell deeds:
And Caesar’s spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion mean, groaning for burial.
-- (Shakespeare: Julius Caesar Act 3 Scene 1)
18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.
23. In our opinion this is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as contract killers for them. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons.
24. In our opinion, the High Court was perfectly justified in canceling the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say,”Who will guard the Praetorian guards?” (see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010).
25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.
28. Before parting with this case, it is imperative in our opinion to mention that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word ‘Matsya’ means fish, and Matsyanyaya means a state of affairs where the big fish devours the smaller one. All our ancient thinkers have condemned Matsyanyaya vide ‘History of Dharmashastra’ by P.V. Kane Vol. III p. 21. A glimpse of the situation which will prevail if matsyanyaya comes into existence is provided by Mark Antony’s speech in Shakespeare’s ‘Julius Caesar’ quoted at the beginning of this judgment.
29. This idea of matsyanyaya (the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said “whenever there is drought, then the stronger seizes upon the weaker, for the waters are the law,” which means that when there is no rain the reign of law comes to an end and matsyanyaya beings to operate.
30. Kautilya says, ‘if danda be not employed, it gives rise to the condition of matsyanyaya, since in the absence of a chastiser the strong devour the weak’. That in the absence of a king (arajaka) or when there is no fear of punishment, the condition of matsyanyaya follows is declared by several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.
31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:- “Raja chenna bhavellokey prithivyaam dandadharakah Shuley atsyanivapakshyan durbalaan balvattaraah”
32. This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker nes, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.
33. We have referred to this because behind the growing lawlessness in the country this Court can see the looming danger of Matsyanyaya.
The judgment has it’s own literate value. Part of the judgment is reproduced here.
The judgment starts by remembering a poem by Shakespeare
A curse shall light upon the limbs of men;
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy;
Blood and destruction shall be so in use
And dreadful objects so familiar
That mothers shall but smile when they behold
Their infants quarter’d with the hands of war;
All pity choked with custom of fell deeds:
And Caesar’s spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion mean, groaning for burial.
-- (Shakespeare: Julius Caesar Act 3 Scene 1)
18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.
23. In our opinion this is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as contract killers for them. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons.
24. In our opinion, the High Court was perfectly justified in canceling the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say,”Who will guard the Praetorian guards?” (see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010).
25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.
28. Before parting with this case, it is imperative in our opinion to mention that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word ‘Matsya’ means fish, and Matsyanyaya means a state of affairs where the big fish devours the smaller one. All our ancient thinkers have condemned Matsyanyaya vide ‘History of Dharmashastra’ by P.V. Kane Vol. III p. 21. A glimpse of the situation which will prevail if matsyanyaya comes into existence is provided by Mark Antony’s speech in Shakespeare’s ‘Julius Caesar’ quoted at the beginning of this judgment.
29. This idea of matsyanyaya (the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said “whenever there is drought, then the stronger seizes upon the weaker, for the waters are the law,” which means that when there is no rain the reign of law comes to an end and matsyanyaya beings to operate.
30. Kautilya says, ‘if danda be not employed, it gives rise to the condition of matsyanyaya, since in the absence of a chastiser the strong devour the weak’. That in the absence of a king (arajaka) or when there is no fear of punishment, the condition of matsyanyaya follows is declared by several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.
31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:- “Raja chenna bhavellokey prithivyaam dandadharakah Shuley atsyanivapakshyan durbalaan balvattaraah”
32. This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker nes, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.
33. We have referred to this because behind the growing lawlessness in the country this Court can see the looming danger of Matsyanyaya.
01 June 2011
Judicial legislation on Rent Acts.
While deciding CIVIL APPEAL NO. 4422 OF 2011 [Mohammad Ahmad & Anr Versus Atma Ram Chauhan & Ors.] the honourable Supreme Court of India has fixed some guidelines, some of which run directly in conflict with the provisions of Rent legislations in force in the country.
As per the guidelines fixed by the honourable Apex Court, henceforth, payment of tax would be the liability of the tenant. Most of the rent legislations provide that, the said liability is of the landlords. The honourable Supreme Court has also issued guidelines for fixation of standard rents.
These guidelines, if considered against the statutory provisions, process of adjudication as to whether a tenant is a defaulter or not has become more complicated as the deductions made by the tenants towards payment of taxes would be treated as arrears of rent, contrary to the provisions of respective statutes. Whether a decree of eviction can be passed by assessing the rent payable contrary to the statutory provisions would be a debatable issue. Five years absolute immunity granted to a tenant paying rent at market rate would render all other grounds of eviction like bonafide requirement, nuisance, etc. as redundant.
Vote bank oriented approach of the legislators has lead to continuation of illogical and unjust protections to some classes. However, question remains, whether that can be a reason to allow the judiciary to legislate?
The guidelines fixed by the honourable Supreme Court are,
21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels.
These are as follows:-
(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard
to adjustment of the amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.
22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.
VAKILSAHEB OPINES
The judiciary has authority to examine constitutional validity of legislation. Please declare the illogical, irrational and un-prudent legislations as unconstitutional by applying the test of existence of rational nexus with the object to be achieved.
VAKILSAHEB
As per the guidelines fixed by the honourable Apex Court, henceforth, payment of tax would be the liability of the tenant. Most of the rent legislations provide that, the said liability is of the landlords. The honourable Supreme Court has also issued guidelines for fixation of standard rents.
These guidelines, if considered against the statutory provisions, process of adjudication as to whether a tenant is a defaulter or not has become more complicated as the deductions made by the tenants towards payment of taxes would be treated as arrears of rent, contrary to the provisions of respective statutes. Whether a decree of eviction can be passed by assessing the rent payable contrary to the statutory provisions would be a debatable issue. Five years absolute immunity granted to a tenant paying rent at market rate would render all other grounds of eviction like bonafide requirement, nuisance, etc. as redundant.
Vote bank oriented approach of the legislators has lead to continuation of illogical and unjust protections to some classes. However, question remains, whether that can be a reason to allow the judiciary to legislate?
The guidelines fixed by the honourable Supreme Court are,
21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels.
These are as follows:-
(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard
to adjustment of the amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.
22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.
VAKILSAHEB OPINES
The judiciary has authority to examine constitutional validity of legislation. Please declare the illogical, irrational and un-prudent legislations as unconstitutional by applying the test of existence of rational nexus with the object to be achieved.
VAKILSAHEB
Sanction for prosecution
The honourable Supreme Court of India, while deciding CRIMINAL APPEAL NO. 992 OF 2007 [M.P. STATE VERSUS PRADEEP KUMAR GUPTA] has held that, for an employee appointed by the State Government and deputed to a Local Authority, the State Government being the appointing authority is competent to grant sanction for his prosecution.
VAKILSAHEB
VAKILSAHEB
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