"The position that emerges from the above discussion can be summarised thus:the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz ; (i) to secure the ends of justice or (ii ) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases,High Court may quash criminal proceedings if in its view , because of the compromise between the offender and victim , the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim . In other words , the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
गुरुवार, 8 अगस्त 2013
Quashing of FIR/Charge Sheet/Proceedings in non compoundable offences:
"The position that emerges from the above discussion can be summarised thus:the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz ; (i) to secure the ends of justice or (ii ) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases,High Court may quash criminal proceedings if in its view , because of the compromise between the offender and victim , the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim . In other words , the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
सोमवार, 5 अगस्त 2013
Disputes relating to ownership and possession
In an action for recovery of possession of immovable property, or for
protecting possession thereof, upon the legal title to the property
being established, the possession or occupation of the property by a
person other than the holder of the legal title will be presumed to have
been under and in subordination to the legal title, and it will be for
the person resisting a claim for recovery of possession or claiming a
right to continue in possession, to establish that he has such a right.
To put it differently, wherever pleadings and documents establish title
to a particular property and possession is in question, it will be for
the person in possession to give sufficiently detailed pleadings,
particulars and documents to support his claim in order to continue in
possession. It would be imperative that one who claims possession must
give the following :
(a) Who is or are the owner or owners of the property;
(b) Title of the property;
(c) Who is in possession of the title documents;
(d) Identity of the claimant or claimants to possession;
(e) The date of entry into possession;
(f) How he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;
(g) In case he purchased the property, what is the consideration; if he
has taken it on rent, how much is the rent, license fee or lease
amount;
(h) If taken on rent, license fee or lease then insist on rent deed, license deed or lease deed;
(i) Who are the persons in possession/occupation or otherwise living
with him, in what capacity; as family members, friends or servants etc.,
(j) Subsequent conduct, i.e., any event which might have extinguished
his entitlement to possession or caused shift therein; and
(k) Basis of his claim not to deliver possession but continue in possession.
शनिवार, 9 जुलाई 2011
Supreme Court on Tenancy Disputes
Speaking for the bench, Justice Dalveer Bhandari said: ‘It takes decades for the final determination of the controversy and the wrongdoers (unscrupulous litigants) are never punished. Pragmatic approach of the courts would partly solve the housing problem of this country.’
The court made the observation while dismissing an appeal by Rameshwari Devi and others staking claim over the property of Nirmala Devi and others of a colony in south Delhi. Describing the appellant as ‘unscrupulous litigants’, the court imposed a cost of Rs.2 lakh on them.
The court said the situation has come to such a pass because going by cost (risk)-benefit ratio, a person engaged in frivolous litigation finds it profitable in procrastinating the litigation.
The deceitful acts of such litigants get aided by the reluctance of the courts to ‘order restitution and actual costs incurred by the other side’, the apex court observed.
The Supreme Court remarked that ‘Unfortunately, our courts are flooded with these cases because there is an inherent profit for the wrongdoers in our system’ .... It is happening because it is the general impression that even if ultimately an unauthorised person is thrown out of the premises, the court would not ordinarily punish the unauthorised person by awarding realistic and actual mesne (average) profits, imposing costs and ordering prosecution.’
Asking the civil courts not to grant ex-parte injunctions without hearing the other side, the judgment said that even if injunction had to be granted, it should be time-bound and for a short period.
In para 52 of the judgment the apex court issued following commandants that the trial courts in civil matters must follow in dealing with such cases:
In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials-
documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
B. The Court should resort to discovery and production of documents and interrogatories
at the earliest according to the object of the Code. If this exercise is carefully carried out, it
would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary
adjournments by the parties. In appropriate prosecution otherwise it may not be possible to
maintain purity and sanctity of judicial proceedings.
D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court
must carefully keep in view the ground realities while granting mesne profits.
E. The courts should be extremely careful and cautious in granting ex-parte ad interim
injunctions or stay orders. Ordinarily short notice should be issued to the defendants or
respondents and only after hearing concerned parties appropriate orders should be passed.
F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse
the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and
substantial justice.
H. Every case emanates from a human or a commercial problem and the Court must make
serious endeavour to resolve the problem within the framework of law and in accordance
with the well settled principles of law and justice.
injunction should be disposed of on merits, after hearing both sides as expeditiously as
may be possible on a priority basis and undue adjournments should be avoided.
pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same
be disposed of in between the said dates of hearings fixed in the said suit itself so that the
date fixed for the main suit may not be disturbed."
The court said that the imposition of ‘actual, realistic or proper cost and ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants’ and thus save the ‘scarce and valuable time’ of the court.
सोमवार, 18 अक्तूबर 2010
Electricity theft- criminal and civil liability
Development charges
रविवार, 26 सितंबर 2010
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शुक्रवार, 11 जून 2010
जन्मतिथि परिवर्तन
इस मामले में एक न्यायिक अधिकारी ने नौकरी पाने के दस साल बाद विश्वविद्यालय के प्रमाण पत्र में अपनी जन्मतिथि बदलवाया था और राज्य सरकार तथा उच्च न्यायलय प्रशासन से यह अनुरोध किया था कि प्रमाणपत्र में संशोधित जन्मतिथि के अनुरूप उसकी सेवा पुस्तिका में भी जन्मतिथि संशोधित किया जाए ।
प्रार्थना पत्र अस्वीकार होने पर उसने दीवानी वाद प्रस्तुत किया जिसे अधीनस्थ न्यायलय तथा उच्च न्यायलय ने भी उसके पक्ष में डिक्री करते हुए सेवा पुस्तिका में जन्म तिथि संशोधित करने का आदेश पारित किया था। उच्चतम न्यायलय ने उच्च न्यायलय प्रशासन की अपील मंजूर करते हुए वाद को अस्वीकार एवं डिक्री को अपास्त कर दिया।