Second FIR for the same offence?

In the matter of Chirra Shivraj v. State of Andhra Pradesh decided on 26-11-2010 the Hon’ble Supreme Court held that “First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report”. In the case of Babubhai v. State of Gujarat & Others on 26th August, 2010, in Criminal Appeal No.1599 of 2010 (arising out of SLP(Crl.) No.2077 of 2010 this Court observed in para 13 as under: 13. ".......the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973, (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 of the Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the nvestigating Officer has to file one or more reports under Section 173 of the Cr.P.C. Even after submission of the report under Section 173(2) of the Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, ..........". In the matter of Chirra Shivraj v. State of Andhra Pradesh it was further held that “In our opinion, it was not necessary to record another FIR as the death was result of septicemia which was due to the burn injuries. Looking to the facts of the present case, in our opinion, in fact the second FIR was nothing but a consequence of the event..... In the circumstances, the contents of the so called second FIR ...... could have been incorporated in the police diary as a result of further information or event which had been taken place in pursuance of the first offence.... It is true that the second FIR .... had been lodged .....when the report with regard to the death of the deceased was reported. As a mater of fact, in our opinion, it was not necessary to note the same as a new FIR but simply because the S.H.O made a mistake by recording it as a fresh FIR, it would not make the case of the prosecution weak especially when no prejudice had been caused to the appellant or any other person because of the aforestated further information with regard to the death being recorded as a new FIR”.

Whether a dying declaration can be the sole basis for conviction?

In Puran Chand v. State of Haryana, 2010 (6) SCC 566, it was held that: "15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration......... 18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubt can be the sole basis for convicting the accused. ......... " In the matter of Chirra Shivraj v. State of Andhra Pradesh dated 26-11-2010 the Hon’ble Supreme Court relied upon the above said decision of this court and held that “ it cannot be said that on the sole basis of dying declaration the order of conviction could not have been passed”.

Independence of constitutional functionaries v. Right to Information

In the matter of Central Public Information Officer,Supreme Court of India v. Subhash Chandra Agrawal dated 26-11-10 the Hon’ble Supreme Court of India made the following observation under the scope of the Right to Information Act: It is in the public interest to keep the appointment and transfer of Supreme Court and High Court Judges from "needless intrusions by strangers and busybodies in the functioning of the judiciary". In the matter of (1981) Supp SCC 87 and (1993) 4 SCC 441 this court held that "This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation..." It was further submitted that the appointment of Judges is essentially a discharge of constitutional trust as laid down by this Court in Subhash Sharms Vs. Union of India. The submission was that the information made available to the Chief Justice of India in respect of appointment of Judges of the High Court and as well as the Supreme Court is held by him in trust and in fiduciary capacity. In S.P.Gupta (1991) Supp. 1 SCC 574 it was further observed that on a holistic reading of the said judgment, it appears that the Court was mainly dealing with the question as to whether any immunity could be claimed from production of the records in respect of the correspondence between the Law Minister and the Chief Justice of India and the relevant notings made by them in regard to the transfer of a High Court Judge including the Chief Justices of the High Court which were extremely material for deciding whether there was full and effective consultation? It is observed at more than one place that the non- disclosure of the said documents would seriously handicap the petitioner therein in showing that there was no full and effective consultation with the Chief Justice of India or that the transfer was by way of punishment and not in public interest. It is observed: “It would become almost impossible for the petitioner, without the aid of these documents, to establish his case, even if it be true." The Court felt that "all relevant documents should be produced before the court so that the full facts may come before the people, who in a democracy are the ultimate arbiters". The Court further observed : "We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them, in regard to discontinuance of an Additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. ... Where it becomes relevant in a judicial proceeding, why should the Court and the opposite party and through them, the people not know what are the reasons for which a particular appointment is made or a particular Additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding". The court further observed that Whether the said decision would be applicable when such information is sought under the provisions of the Right to Information Act is an important question that is required to be gone into. It stated that “we are of the considered opinion that a substantial question of law as to the interpretation of the Constitution is involved in the present case which is required to be heard by a Constitution Bench. The case on hand raises important questions of constitutional importance relating to the position of Hon'ble the Chief Justice of India under the Constitution and the independence of the Judiciary in the scheme of the Constitution on the one hand and on the other,fundamental right to freedom of speech and expression. Right to information is an integral part of thefundamental right to freedom of speech and expression guaranteed by the Constitution. Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of Judiciary forms part of basic structure of the Constitution of India. The independence of Judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced. The Constitution is fundamentally a public text—the monumental character of a Government and the people-- and Supreme Court is required to apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the Indian habit, extraordinary to other democracies, of casting social, economic, philosophical and political questions in the form of public law remedies, in an attempt to secure ultimate resolution by the Supreme Court. In this way, important aspects of the most fundamental issues confronting our democracy finally arrive in the Supreme Court for judicial determination. Not infrequently, these are the issues upon which contemporary society is most deeply divided. They arouse deepest emotions. This is one such controversy. William J. Bennan, Jr. in one of his public discourse observed: "We current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. This realization is not, I assure you, a novel one of my own creation. Permit me to quote from one of the opinions of our Court, Weems V. United States, 217 U.S. 349, written nearly a century ago: "Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice John Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care and provision for events of good and bad tendencies of which no prophesy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be." The current debate is a sign of a healthy nation. This debate on the Constitution involves great and fundamental issues. Most of the times we reel under the pressure of precedents. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? Following substantial questions of law as to the interpretation of the Constitution arise for consideration:
1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary?
2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision? 3.Whether the information sought for is exempt under Section 8(i)(j) of the Right to Information Act? “
the court held that “the above questions involve the interpretation of the Constitution raise great and fundamental issues”. For the aforesaid reasons, the court directed the Registry to place this matter before Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength.

Related Person under the Central Excise Tariff Act, 1985

In the matter of Commissioner, Central Excise,Chandigarh v. M/s. Kwality Ice Cream Co. dated 26/11/2010 the Hon’ble Supreme Court of India discussed in the detail about who can be called as related person under the Central Excise Tariff Act, 1985(for short `the Act'). It observed that under Section 4 of the Act provides as under: "SECTION 4. VALUATION OF EXCISABLE GOODS FOR PURPOSES OF CHARGING OF DUTY OF EXCISE. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other pro visions of this section, be deemed to be-(a) The normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: Provided that - (i) Where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers; (ia) where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each such price shall, subject to the existence of other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such place of removal; (ii) Where such goods are sold by the assessee in the course of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force or at a price, being the maximum, fixed under any such law, then, notwithstanding anything contained in clause (iii) of this proviso, the price or the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be the normal price thereof; (iii) Where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons), who sell such goods in retail; (b) Where the normal price of such goods is not ascertainable for the reason, that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2)........... (3)........... (4) For the purposes of this section,- (a) "Assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent;(b).............(c) "Related person" means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub- distributor of such distributor. Explanation : In this clause "holding company", "subsidiary company" and "relative" have the same meanings as in the Companies Act, 1956." According to clause (c) of sub-section (4) of Section 4 of the Act, `related person' means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company etc. The explanation to Section 4 (4) (c) further provides that in this clause `holding company', `subsidiary company' and ` relative' have the same meanings as in the Companies Act, 1956. It is in this background that the validity or otherwise of the Tribunal's order is required to be analyzed and judged. In Union of India vs. Bombay Tyre International Ltd.1, this Court examined the scheme of Section 4 (1) (a) before the Amendment Act, 1973 and also the position after the amendment. It was contended in that case before this Court that the definition of the expression "related person" was arbitrary and it included within its ambit a distributor of the assessee. This Court, however, held that in the definition of `related person' being a relative and a distributor could be legitimately read down and its validity upheld. The definition of `related person' should be so read, this Court emphasised, that the words "a relative and a distributor of the assessee" should be understood to mean a distributor who was a relative of the assessee. The Explanation to Section 4(4)(c) provides that the expression "relative" has the same meaning as in the Companies Act, 1956. The definition of "related person", as being "a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company ...", shows a sufficiently restricted basis for employing the legal fiction. It was reiterated that it is well settled that in a suitable case the Court could lift the corporate veil where the companies share the relationship of a holding company and a subsidiary company and also pay regard to the economic realities behind the legal facade. This aspect was further examined by this Court in Union of India Vs. ATIC Industries Ltd.This Court referred to the decision of Bombay Tyre International Ltd. (supra) and also referred to the first part of the definition `related person' in clause (c) of Section 4 [ 1984 (17) ELT 323 SC = 1984 (3) SCR 930]. (4) which defines `related person'. This Court observed that if the transactions between the manufacturer and his customers were on principal to principal basis and the whole sale price charged by the assessee to the customers was the sole consideration for the same and no extra commercial considerations entered in the determination ofsuch a price, the customer cannot be held to be a `related person' merely because he holds 50% share in the manufacturing company. It is held: "It is not enough that the assessee has an interest, direct or indirect, in the business of the person alleged to be a related person nor is it enough that the person alleged to be a related person has an interest, direct or indirect, in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest, direct or indirect, in the business of each other. Each of them must have a direct or indirect interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other" In Union of India vs. Playworld Electronics Pvt.Ltd., this Court took the view that merely because goods are produced with customer brand name and the entire production sold to the owner of the brand name, cannot be treated as a sale between `related persons'. The case was that Playworld Electronics Pvt.Ltd. manufactured its products in the brand name of `Bush' from the very beginning and was selling the same exclusively to M/s. Bush India Limited or its authorized dealers only. This Court took the view that the market value of the goods of Playworld Electronics Pvt. Ltd. was the price charged from M/s. Bush India Ltd. and not the market value at which price M/s. Bush India Ltd. sold to its wholesalers for the purpose of payment of excise duty. In Calcutta Chromotype Ltd. vs.Collector of Central Excise, Calcutta4 . The said decision refers the decision of this court in Atic Industries Ltd. (supra). The Court in the said decision also noticed the view expressed by this Court in Collector of Central Excise, Madras vs. T.I. Millers Ltd., Madras and T.I. Diamond Chain, Madras [ 1988 (35) E.L.T. 8 (SC)], Snow White Industrial Corporation vs. Collector of Central Excise [ 1989 (41) E.L.T. 360 (SC)]. After the analysis of all the said decisions this Court held: "If we examine the thrust of all the decisions, there is no bar on the authorities to lift the veil of a company, whether a manufacturer or a buyer, to see it was not wearing that mask of not being treated as related person when, in fact, both, the manufacturer and the buyer, are in fact the same persons. Under sub-section (1) of Section 4 of the Act, value of the excisable goods shall not be deemed to be normal price thereof, i.e., the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, if the buyer is a related person and price is not the sole consideration for sale. As to who is a related person, we have to see its definition in Section 4(4)(c) of the Act. It is not only that both the manufacturer and the buyer are associated with each other for which corporate veil may be lifted to see who is behind it but also that they should have interest, directly or indirectly, in the business of each other. But once it is found that persons behind the manufacturer and the buyer are same, it is apparent that the buyer is associated with the manufacturer, i.e., the assessee and then regard being had to the common course of natural events, human conduct and public and private business it can be presumed that they have interest, directly or indirectly, in the business of each other (refer Section 114 of the Evidence Act). It is, however, difficult to lay down any broad principle to hold as to when the corporate veil should be lifted or if on doing that, it could be said that the assessee and the buyer are related persons. That will depend upon the facts and circumstances of each case and it will have to be seen who is calling the shots in both the assessee and the buyer. When it is the same person the authorities can certainly fall back on the third proviso to clause (a) of Section 4(1) of the Act, to arrive at the value of the excisable goods. It cannot be that when the same person incorporates two companies of which one is the manufacturer of excisable goods and the other is the buyer of those goods, the two companies being separate legal entities, the Excise authorities are barred from probing anything further to find out who is the person behind these two companies. It is difficult to accept such a narrow interpretation. True that shareholdings in a company can change but that is the very purpose to lift the veil to find out if the two companies are associated with each other. Law is specific that when duty of excise is chargeable on the goods with reference to its value then the normal price on which the goods are sold shall be deemed to be the value provided (1) the buyer is not a related person and (2) the price is the sole consideration. It is a deeming provision and the two conditions have to be satisfied for the case to fall under clause (a) of Section 4(1) keeping in view as to who is the related person within the meaning of clause (c) of Section 4(4) of the Act. Again if the price is not the sole consideration, then again clause (a) of Section 4(1) will not be applicable to arrive at the value of the excisable goods for the purpose of levy of duty of excise." In Flash Laboratories Ltd. vs. Collector of Central Excise, New Delhi the appellant-Company was a manufacturer of toothpaste ("Prudent") falling under Sub-Heading 3306.00 of the Schedule to the Act. It had been selling its products to its holding Company, PP Ltd. as well as to PB Ltd. which was also a subsidiary Company of PP Ltd. The appellant had been paying duty at the price at which the goods were sold to the holding Company. Having regard to the fact that both appellant as well as PB Ltd. were subsidiary Companies of PP Ltd., this Court took the view that though the relationship between the appellant and PB Ltd. is indirect, they had mutual interest in the business of each other. The facts and circumstances of the case reveal that there is a mutuality of interest between the three Companies as 60% of the products of the appellants was sold to PP Ltd. And remaining 40% of the total products of toothpaste was being sold to PB Ltd. Moreover, it was found that PP Ltd. Was incurring expenses for sales promotion and advertisement for the sale of the appellants' products namely "Prudent Toothpaste". It was under those circumstances it was held that the parties to the transactions were `related persons'. In CCE vs.Xerographic Ltd., this Court reiterated the well settled principle and laid down the three conditions that are required to be satisfied before invoking the third proviso, namely, firstly, there should be mutuality of interest; secondly, that the alleged `related person' should be related to the assessee as per definition of Section 4 (4) (c) given in the Act and thirdly, and importantly, that the price charged from the `related persons' was not the normal price but the price lower than the normal price and because of extra-commercial considerations the price charged was less than the normal value. On analysis of the decisions referred to herein above, it appears what is important is that each of the parties involved should have an interest, whether direct or indirect in the business of each other.In Supreme Washers Pvt. Ltd. vs. Commissioner of Central Excise, Pune7, the Court had to consider and analyse the concept of mutual interest and it was found that there was common procurement of raw material, parties had common stock accounting and planning and interdependence in manufacturing operations. It was held that having common stock of raw material and semi finished goods, having common use of machinery between the three units, having common marketing arrangements and free flow of finance between the three units cumulatively indicates interdependence of the three units with each other as also inter-relationship, cumulatively establishes the appellants inter relationships and interdependence with each other.

Prevention of Corruption Act, 1988 and its difficulty

Prevention of Corruption Act was enacted to prevent corruption. But its misuse and preventive interpretation has created many difficulties. Courts has to look in every aspect whether the person has actually done an offece under the said Act or it is mere an act to trouble him. the very first question comes in my mind is if i have not asked money and the work has been done promptly by me(if there is no legal bar) how can i be booked for the same? the same attempt was made in the matter of C.M. Sharma v. State of A.P. Th. I.P. decided on 25/11/2010 by the Hon'ble Supreme Court of India. in this case the appellant(who was posted as Deputy Chief Engineer, Railway Electrification, South Central Railway, Vijaywada.) was arrested and sentenced for taking illegal money from one Venka Reddy (hereinafter referred to as the `contractor'). During the years 1992-1994contractor,was awarded the contracts of railway electrification between railway stations Bhongir and Sanathnagar and Maulali and Sanathnagar bypass under agreement No. 29 dated 3.4.1992 and agreement No. 41 dated 20.11.1992 respectively. Further by agreement No. 3 dated 18th October, 1994 work to provide height gauges at railway crossing between Vijayawada and Gannavaran was awarded to him. The contractor completed the works to the satisfaction of the railway authorities and in respect of the works covered by aforesaid agreement nos. 29 and 41 he received the payment. The contractor also completed the work covered under agreement No. 3 dated 18.10.1994 aforesaid in the month of March, 1995. The appellant was the competent authority to pass the bills and accordingly the contractor met him on 19.4.1995 and requested to finalise the bill. The appellant denied to issue and demanded Rs. 3,000/- as illegal gratification. The contractor expressed his inability to pay the illegal gratification but the appellant insisted and asked him to bring the money on 20th April, 1995.He then met the officials of the Central Bureau of Investigation and gave a written report. Being satisfied with the bonafide of the allegation, a pre-trap exercise was undertaken on the instruction of office Superintendent.The contractor alongwith the shadow-witness to the office of the appellant. The witness was asked to leave the chamber and he went out. Thereafter appellant demanded the money and the contractor handed over the tainted money to him, which he received from his right hand and kept in right side pocket of the trouser. A signal was given, whereupon the Inspector along with his team entered in the chamber, apprehended the appellant and conducted sodium carbonate test on the fingers of both the hands and right trouser pocket of the appellant, which turned pink. The tainted notes were lying on the floor of the office, which were recovered. After usual investigation, the Investigating Agency submitted the charge-sheet and the appellant was put on trial, where he abjured his guilt and claimed to be tried. The appellant in his statement under Section 313 of the Code of Criminal Procedure made a plea of false implication of him due to enmity with the contractor. The same was rejected by the trial court and accordingly the appellant was convicted and sentenced , which was further affirmed in appeal by the High Court. The same plea was also made by the accused before Supreme Court that he has been falsely implicated as there being strained relationship between the appellant and the contractor it is highly improbable that he would demand the illegal gratification from him.it was stated that In the case of Panalal Damodar Rathi v. State of Maharashtra, 1987 Supp. SCC 266 this court held that “26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion." Further in the case of Panalal Damodar Rathi vs. State of Maharasthra, (1979) 4 SCC 526 and which attention has been drawn to paragraph 9 thereof which reads as follows: "9. It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the panch witness PW 3. According to panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that PW 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by PW 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on." Another decision on which reliance is placed is the decision of this Court in the case of Meena (Smt) W/O Balwant Hemke v. State of Maharashtra, (2000) 5 SCC 21 in which it held as follows: "The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW 5 categorically admitted that even as the Inspector of Police, PW 6 arrived, the appellant gave the same version that PW 1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW 1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW 3, the Head Copyist, seems to be the brain behind all this and that PW 1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW 3, his closeness to PW 1 and Jagdish Bokade stands well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below."Reference was also made to a decision of this Court in the case of Dalpat Singh and another v. State of Rajasthan, AIR 1969 SC 17, in which it has been held as follows: "We are unable to accept the contention of the learned counsel for the appellants that PWs 1,2,3,4 and 17 and other prosecution witnesses to whose evidence we shall presently refer, should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted. On the proved facts, even those who gave illegal gratification to the appellants cannot be considered as accomplices as the same was extorted from them. Though PWs 1,2,4 and 17 can be considered as interested witnesses as regards their evidence relating to trap, as a matter of law, it is not correct to say that their evidence cannot be accepted without corroboration, see State of Bihar v. Basawan Singh 1959 SCR 195 = (AIR 1958 SC500) . In the present case after considering all the relevant submission made by the respected counsels of the parties the Court held that “We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the act within the mischief of Sections 7 and 13 (1) (d) (ii) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the contractor as he had passed his bills. There is further evidence that when the contractor went along with the shadow-witness on the date told by the appellant for payment of the bribe, appellant asked the shadow-witness to leave the chamber and thereafter the demand for payment of illegal gratification was made and paid. The positive sodium carbonate test vis-`-vis the fingers and right trousers pocket of the appellant go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.” According Court dismisses the appeal and upheld the order of trail court and the High Court.

High Court can not override its own order which has become final in absent of any appeal or review under Sections 151 and 152 of C.P.C

Hon'ble Supreme Court in the matter of Sarup Singh v. Union of India dated 25/11/2010 held that a High Court can not override its own judgment which has become finality in absence of any appeal or review aginst such order. it further held that the executing court can rightly ignore such decision as being nullity. in this case the Hon'ble High Court enhanced the compensation amount under Land Acquisation (amendmenat) Act,1984 which was previously decided by the same High Court. the Hon'ble Supreme Court discussed this matter in length and observed as follows:
It is true that the executing court cannot go behind the decree and grant interest not granted in the decree as in the light of the decision rendered by this Court in State of Punjab & Others v. Krishan Dayal Sharma reported in AIR 1990 SC 2177. But, if a decree is found to be nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction and the same is non-est and void ab initio. The aforesaid position is well-settled and not open for any dispute as the defect of jurisdiction strikes at the very root and authority of the Court to pass decree which cannot be cured by consent or waiver of the parties. This Court in several decisions has specifically laid down that validity of any such decree or order could be challenged at any stage. In Union of India v. Sube Ram & Others reported in (1997) 9 SCC 69 this court held thus:"5. [...] here is the case of entertaining the application itself; in other words, the question of jurisdiction of the court. Since the appellate court has no power to amend the decree and grant the enhanced compensation by way of solatium and interest under Section 23(2) and proviso to Section 28 of the Act, as amended by Act 68 of 1984, it is a question of jurisdiction of the court. Since courts have no jurisdiction, it is the settled legal position that it is a nullity and it can be raised at any stage." In yet another case of Amrit Bhikaji Kale & Others v. Kashinath Janardhan Trade & Anothers reported in (1983) 3 SCC 437 this Court has held that when a Tribunal of limited jurisdiction erroneously assumes jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision are wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and its validity can be raised in collateral proceeding. In Balvant N. Viswamitra & Others v. Yadav Sadashiv Mule (Dead) Through Lrs. & Others reported in (2004) 8 SCC 706 this Court stated thus: "9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, and irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks herent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings." In Chiranjilal Shrilal Goenka (deceased) Through Lrs. v. Jasjit Singh & Others reported in (1993) 2 SCC 507 this Court stated thus: "18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. ............." In the present cases the judgment and order passed by the High Court before the amendment Act of 68 of 1984 became final and binding as no appeal was brought to this Court thereafter. However, consequent to the Amendment in the Land Acquisition Act, the appellants had filed civil miscellaneous applications for the grant of 30 per cent solatium and 9 per cent interest for first year and 15 per cent interest thereafter. This Court has also held in a catena of decisions that a decree once passed and which has become final and binding cannot be sought to be amended by filing petition under Sections 151 and 152, C.P.C. In the case of Union of India v. Swaran Singh & Others reported in (1996) 5 SCC 501 this Court held thus:- "8. The question then is whether the High Court has power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1984. This controversy is no longer res integra. In State of Punjab v. Jagir Singh and also in a catena of decisions following thereafter in Union of India v. Pratap Kaur; State of Maharashtra v. Maharau Srawan Hatkar; State of Punjab v. Babu Singh; Union of India v.Raghubir Singh and K.S. Paripoornan v. State of Kerala, this Court has held that the Reference Court or the High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1984.Consequently, the award by the High Court granting enhanced solatium at 30% under Section 23(2) and interest at the rate of 9% for one year from the date of taking possession and thereafter at the rate of 15% till date of deposit under Section 28 as amended under Act 68 of 1984 is clearly without jurisdiction and, therefore, a nullity. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing court." In the case of Union of India v. Rangila Ram (dead) by Lrs. Reported in (1995) 5 SCC 585 held as follows: - "4. The point is no longer res integra. This Court has considered the scope of the power of the High Court under Sections 151 and 152, CPC and also under Section 13-A of the Act. This Court has held that once the civil court made an award as per law then in force which became final and that there is no error of law as on that date. Subsequent amendment does not give power to the court to amend the decree under Sections 151 and 152, CPC. This was held in State of Maharashtra v. Maharau Srawan Hatkar and Union of India v. Pratap Kaur. In Maharau Srawan Hatkar case this Court held that the civil court lacked inherent jurisdiction and was devoid of the power to entertain an application to award additional benefits under the Amendment Act 68 of 1984. The facts therein were that the award had become final and the Amendment Act 68 of 1984 had come into force on 24-9-1984. The respondents made an application under Sections 151 and 152, CPC to award enhanced solatium and additional benefits etc. and the civil court allowed and granted the same. In that context, considering the civil court's power under Sections 151 and 152, CPC, this Court laid the above law." In the case of Dwaraka Das v. State of M.P. & Another reported in (1999) 3 SCC 500 this Court described the scope of Section 152, C.P.C. thus: "6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order.

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E- Filing in India- dream come true

In India now no one has to follow the same traditional method of filing the case. the new approach adopted by the Hon'ble Supreme Court of India sounds really impressive. this step of the Apex court will give the court a new dimention. it will also advance the use of technology and its adaptability in India. the court has provided some guidelines for the same. the guidelines regarding E-filing of the case i.e. who can file and other important informations are available in the official website of the Supreme Copurt of India. povisions relating to E-filing have been mentioned hereunder for easy referance of common man

INSTRUCTIONS FOR E-FILING REGISTRATION


1. First time users of Supreme Court E-filing have to register him/her through the "Sign Up" option.

2. Through "e-FILING" only Advocate-on Record and petitioners-in-person can file cases in the Supreme Court of India.


3. Advocate option is to be chosen if you are an "Advocate-on-Record", otherwise choose "In-person" option in case you are petitioner-in-person.


4. For registering first time personal details such as Address, contact details, E-mail Id etc., which are mandatory, need to be entered.


5. For Advocate-on-record, his/her code (Advocate-on-record code) will be "Login-ID", while "In-person" will create his/her Login-Id through "Sign Up" option. Password needs to be entered thereafter. Login Id and password will be created once the mandatory requirements are filled properly.


6. After successful login the "Disclaimer screen" appears on the screen.


7. Clicking of "I agree" button on Disclaimer allows the user to proceed further, while "I decline" button sends the control back to the Login screen.


8. After successful login, the user can file the case electronically.


9. "New Case" option allows the user to file a new case.


10."Modify" option allows a user to carryout changes to the already e-filed case, provided the court fee payment option is not invoked.


11. Court fee can be paid only through credit card.


12. Defects associated with the e-filed case will be e-mailed to the advocate/petitioner by the Supreme Court Registry.


13. Petitions filed through E-MAIL are not entertained. For Electronic filing of case in Supreme Court. Use E-Filing facility only. Payment of Fee for E-Filed case are accepted only through Credit Cards and Debit Cards of the following banks mentioned below:

Andhra Bank, Axis Bank Limited, Barclays Bank Plc, Canara Bank, City Union Bank Ltd. Corporation Bank Deutsche Bank AG GE Money Financial Services Ltd. HDFC Bank Ltd. ICICI Bank Ltd. Also for Mastercard debit cards (Only on ICICI PG) Indian Overseas Bank Kotak Bank-Virtual card Standard Chartered Bank State Bank of India Syndicate Bank The Federal Bank Ltd.The Karur Vysys Bank Ltd.


14. For further assistance, "Help" option is available.


INSTRUCTIONS FOR AVAILING ORDER / DOCUMENTS

Note dated 25-06-07 of Ld. Registrar regarding providing of certified copy of order through post and charges thereof.

Whenever any person /party concerned sends application by post or through e-mail for issuance of certified copy of order/document etc. first of all charges are calculated as the details given below

1. Folio(per page) - Rs.1/-

2. Certification charges - Rs.10/-

3. Urgency charges - Rs.5/-

4. Postal charges(minimum)by Regd. Post - Rs.22/-

5. Third party - Rs.5/-


After the calculation of amount according to the number of pages of particular order plus other charges as mentioned above, the party concerned is informed by post or e-mail(if e-mail id is mentioned in his application)to send the charges by the way of "Money Order" in favour of Assistant Registrar(Copying). On receipt of amount, Court fee is purchased and affixed at the application and certified copy of order, as requested, is dispatched by Regd. Post only at the address mentioned in the application.

Are the Hard Discs documents?

In the matter of Dharambir vs Central Bureau Of Investigation decided on 11 March, 2008 the Hon’ble Supreme Court of india took the reference of Section 173(5)(a) and Section 207 CrPC, which read thus:
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) The names of the parties;
(b) The nature of the information;
(c) The names of the persons who appear to be acquainted with the circumstances of the case;
(d) Whether any offence appears to have been committed and, if so, by whom;
(e) Whether the accused has been arrested;
(f) Whether he has been released on his bond and, if so, whether with or without sureties;
(g) Whether he has been forwarded in custody under Section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) The statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of' Sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)
207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following.
(i) the police report;
(ii) the first information report recorded under Section 154:
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173.
(iv) The confessions and statements, if any, recorded under Section 164;
(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the accused with
a copy thereof', direct that he will only be allowed to inspect it either personally or through pleader in Court.
And observed that the scheme of the above two Sections indicates that the Legislature has intended to differentiate between documents forwarded to a court by the police along with the charge sheet or sent to it earlier during the course of investigation on the one hand and the statements of prospective witnesses recorded by the police during investigation under Section 161 CrPC, copies of which are also forwarded to the Court along with the charge sheet, on the other. This is plain from the language of Section 173(5)(a) when compared with that of Section 173(5)(b) read with Section 173(6) and the first and second provisos to Section 207(v) CrPC. For instance, the reference in Section 173(6) to 'any such statement' is to the statement of witnesses referred to in Section 173(5)(b) CrPC, i.e statements recorded of prospective witnesses under Section 161 CrPC. In relation to these statements the police office has a discretion under Section 173(6) CrPC to withhold a part thereof if he forms an opinion that it is inexpedient in public interest to do so and inform the Magistrate accordingly. Further, the first proviso to Section 207(v) gives a discretion to the Magistrate to provide to the accused even those statements which 'the Magistrate thinks appropriate' shall be furnished. This is in contrast to the position regarding documents. Section 173(5)(a) CrPC refers to documents 'on which the prosecution proposes to rely' other than 'those already sent to the Magistrate during the investigation'. These documents are to be forwarded to the Magistrate along with report. Therefore at the stage when the supply of documents has to be made in terms of Section 207(v) CrPC what the Magistrate has with him are those documents which have already been sent to the Magistrate during the course of investigation and those documents that are forwarded by the police officer along with the charge sheet. Under Section 207(v), the Magistrate has no discretion in the matter of not supplying such documents. The only limited discretion that the Magistrate has in terms of the second proviso to Section 207(v) CrPC is if the documents are so voluminous he can direct that the accused will be permitted only an inspection of the documents. Since considerable importance is attached, on a reading of the aforementioned two provisions of the CrPC, to the supply to the accused of all the 'documents' proposed to be relied upon by the prosecution, the question that arises is whether the HDs are documents of which copies can be asked for by the accused. The meaning of the word 'document' used in Section 173(5)(a) as well as Section 207(v) has to be appreciated in the present case in the context of the nature of document the copy of which is being sought. Here we are concerned with digital copies, in the form of voice executable. WAV (sound format) files, of the intercepted telephone conversations which were directly recorded on to an electronic device viz., the hard disc. This can be better understood by referring to the meaning of the words 'document' and 'evidence' occurring in Section 3 of the EA. The said definitions read as under:
3 - Interpretation clause. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:
"Document" - 'Document'` means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
"Evidence" - 'Evidence' 'means' and includes--(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
Such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court];
such documents are called documentary evidence.
Section 3 EA states that the expression 'electronic record' has the same meaning as attributed to it in the IT Act. Section 2(t) of the IT Act defines
'electronic record' to mean:
(t) ``electronic record'` means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
The word 'data' has been defined in Section 2(o) IT Act to mean:
(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer
A collective reading of the above definitions shows that an electronic record is not confined to data alone but it also means the record or data generated received or sent in an electronic form. The word 'data' includes 'a representation of information, knowledge and facts' which is either intended to be processed, is being processed 'or has been processed in a computer system or computer network'' or stored initially in the memory of computer.' The word 'data' therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory. There are six levels of memory in the hard discs and therefore information which was written and then rewritten upon more than 5 times could still be retrieved from the subcutaneous memory of the hard disc. Even if there is a doubt whether that entire information can be reconstructed, certainly the information to the effect that the memory in the hard disc has been written and rewritten upon for over six times would be available. It is possible to analyze a hard disc with the help of a software programme; to find out on what date the information was first written with the exact time of such change. It is possible to retrieve such information in respect of each of the occasions when such information is removed and reinserted or changed on the hard disc. While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it is subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any purpose will contain some information and will therefore be an electronic record. This is of course peculiar to electronic devices like hard discs. Therefore, when Section 65B EA talks of an electronic record produced by a computer (referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. There are two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software programme. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image. The conclusions that can be drawn from the above discussion are:
(a) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer;
(b) Once the hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose;
(c) Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not at present contain any accessible information
(d) In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(e) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic record is a document.
(f) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics.

The right to grant recognition to the training colleges under National Council for Teacher Education Act, 1995

The Supreme Court of India, on 23-11-2010, in the matter of Bhagwan Budha Prathmik Technical Training College Nirmali Versus Union of India & Others held that in 17 August 1995 the National Council for Education Teachers education bill 93 was passed. Under the act, the right to grant approval to the training colleges is now given to the National Council for Teachers Education. Thus in the aforesaid circumstances the concerned college has to make an application for permission before the NationalCouncil for Teachers Education. The matter pertaining to approval/recognition is not within the power of the State Govt. But the college can be considered to be recognized one with effect from 1987-89 to 1995, because the approval ought to have been granted in view of the inspection report." under Section 14 of the Act, the institute which is giving teachers training has to apply for its recognition to NCTE within six months of the Act coming into force. The students of an institution recognized by NCTE alone can appear for the qualifying examination as per Section 16 of the Act. It becomes clear that after the application of the National teachers training council (N.C.T.E.) Act 1993, the right to grant recognition to the training colleges is the authority of the regional council, National council for Teacher education and not of the State Government or of any other authority. Section 16 (b) lays down thereafter that after the appointed day no examining body shall hold examination for a course or training conducted by an institution, unless it has obtained recognition from the Regional Committee of NCTE. Sections 14 (1) and 16 read as follows:- "14. Recognition of institutions offering course or training in teacher education - (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations: Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee." "16. Affiliating body to grant affiliation after recognition of permission by the Council - Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day,- (a)grant affiliation, whether provisional or otherwise, to any institution; or (b)hold examination, whether provisional or otherwise, for a course or training conducted by a recognized institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under section 14 or permission for a course or training under section 15." Appointed day' has been defined under Section 2 (a) of the Act as the date of establishment of National Council for Teacher Education. Section 3 (1) of the Act lays down that with effect from a date as the Central Government may by notification in the official gazette appoint, there shall be established a council to be called the National Council for Teacher Education. Prior to 1995, the NCTE had existed since about 1973 as a government advisory body (and not as a separate institution) to look after development and progress of "teacher education". The NCTE was then only a department of the National Council of Educational Research and Training. The National Council for Teacher Education, in its previous status since 1973, was an advisory body for the Central and State Governments on all matters pertaining to teacher education, with its Secretariat in the Department of Teacher Education of the National Council of Educational Research and Training (NCERT). Despite its commendable work in the academic fields, it could not perform essential regulatory functions, to ensure maintenance of standards in teacher education and preventing proliferation of substandard teacher education institutions. The National Policy on Education (NPE) 1986, and the Programme of Action thereunder, envisaged a National Council for Teacher Education with statutory status and necessary resources as a first step for overhauling the system of teacher education. The NCTE Act came into force on 1.7.1995, vide S.O. 620(E), dated 1.7.1995, published in the Gazettee of India, Ext. Pt. II, S.3(ii), dated 10.7.1995 by exercising the power under Section 1 (3) of the NCTE Act. The National Council for Teacher Education as a statutory body came into existence in pursuance of the NCTE Act, 1993 (No. 73 of 1993) on 17.8.1995.

An non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly.

The Supreme Court of India on 23-11-2010, in the matter of Gian Singh v. State of Punjab & Another held that the Court must maintain the judicial restrain and should not do indirectly such thing which can not be done directly.
While deciding the matter the Apex Court observed the three decisions of this Court, all by two Judge Benches.They are B.S.Joshi vs. State of Haryana (2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of Investigation and Another (2008) 9 SCC 677; and Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these decisions, this Court has indirectly permitted compounding of non-compoundable offences. Section 320, Cr.P.C. mentions certain offences as compoundable, certain other offences as compoundable with the permission of the Court, and the other offences as non-compoundable vide Section 320(7). Section 420, IPC is a compoundable offence with permission of the Court in view of Section 320, Cr.P.C. but Section 120B IPC is a non-compoundable offence. Section 120B(criminal conspiracy) is a separate offence and since it is a non-compoundable offence, the court cannot permit it to be compounded. The Court cannot amend the statute and must maintain judicial restraint in this connection. The Courts should not try to take over the function of the Parliament or executive. It is the legislature alone which can amend Section 320 Cr.P.C. The Court opined that something which cannot be done directly cannot be done indirectly. An non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly.

STATES AMENDMENT OF THE SECTION 125(1) OF THE CRIMINAL PROCEDURE CODE – Constitutional validity

The Hon’ble Supreme Court of India under Criminal Appellate Jurisdiction between Manoj Yadav and Pushpa @ Kiran Yadav on 23-11-2010 decided that in the original Code Criminal Procedure of 1973 the maximum maintenance which could be granted by the Magistrate under Section 125 (1) Cr.PC was Rs.500/- per month. Subsequently by the Code Criminal Procedure (Amendment) Act of 2001 enacted by Parliament the words "not exceeding five hundred rupees in the whole" in Section 125(1) were deleted w.e.f. 24.9.2001. In the Statement of Objects to the Act of 2001 it was stated : "The ceiling of rupees five hundred per month for maintenance allowance was prescribed in the year 1955 in Section 488 of the Code of Criminal Procedure, 1898. A ceiling of rupees five hundred was prescribed in Section 125 of the Code Criminal Procedure, 1973 on the lines of Section 488 of the Code Criminal Procedure, 1898 which has since been repealed. In view of the cost of living index continually rising, retention of a maximum ceiling is not justified. If a ceiling is prescribed and retained, it would require periodic revision taking into account the inflation and rise in the cost of living as well as amendment of provisions of the Act from time to time. This would necessarily be time consuming. Accordingly, it is also proposed to amend Section 125 and make consequential changes in Section 127 of the Code Criminal Procedure to remove the ceiling of maintenance allowance." Prior to the 2001 amendment of the Code Criminal Procedure by Parliament many State Legislatures had passed State Amendments of Section 125(1) Code Criminal Procedure enhancing the maximum maintenance which could be granted from Rs.500/- per month to a higher figure. It was felt by those State Legislatures that Rs.500/- per month is not sufficient. Hence these State Amendments were made for the benefit of the women because at that time the 2001 Amendment had not been enacted by Parliament, and there was a maximum limit of Rs.500/- per month in Section 125(1) for grant as maintenance. The States which had made these State Amendments prior to the 2001 Amendment enhancing the maintenance from Rs.500/- per month to a higher figure are the States of Madhya Pradesh, Maharashtra, Rajasthan, Tripura and Uttar Pradesh.
The Apex Court was prima facie of the opinion that in view of the 2001 Amendment to the Code of Criminal Procedure by Parliament, the maximum maintenance prescribed by the above mentioned State Legislatures are no longer valid in view of Article 254(1) of the Constitution, apart from being unconstitutional now as being violative of Articles 14 and 21 of the Constitution.

JURISDICTION OF WAKF TRIBUNAL

The Supreme Court of India under Civil Appellate Jurisdiction in Civil Appeal No. 5297 of 2004 between Board of Wakf, West Bengal and Anis Fatma Begum & Anr. decided that the jurisdiction of Wakf Tribunal is very wide and the same cannot be taken away by any general law. Apex Court held that all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. The Wakf Act, 1995 is a recent parliamentary statute which has constituted a special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters. Section 83 (1) of the Wakf Act, 1995 states,

"83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification if the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each or such Tribunals."

Section 84 of the Act states,

"84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision - Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute".

Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. Under Section 83 (5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property. The party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates. The proviso to Section 83 (9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court. It is well-settled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law vide Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn. 2004, pp 133- 134). The Court based its observation on the principle found in the matter of Chief Engineer, Hydel Project & Ors vs. Ravinder Nath & Ors.(2008) 2 SCC 350, where the Apex Court held that when the matter fell in the area covered by the Industrial Disputes Act, the Civil Court would have no jurisdiction. In the above decision the Court has referred to several earlier decisions on this point.

Contempt of Court v. Freedom of Speech

In ORIGINAL APPELLATE JURISDICTION ,CONTEMPT PETITION (CRL.) NO.10 OF 2009 IN INTERLOCUTORY APPLICATION NOS.1324, 1474, 2134 OF 2007 IN WRIT PETITION (C) NO.202 OF 1995, between Amicus Curiae and Prashant Bhushan & Anr.; Amicus Curiae, Mr. Harish N. Salve, learned Senior Advocate, drew the attention of the Hon’ble Supreme Court of India towards certain statements made by Shri Prashant Bhushan, Senior Advocate, which was reported in Tehelka magazine, of which Shri Tarun J. Tejpal,was the Editor-in-Chief. The learned Amicus Curiae also drew the attention of the Court to certain statements which had been made by Shri Prashant Bhushan, Senior Advocate, in an interview given to Ms. Shoma Chaudhury, wherein various statements were made alleging corruption in the judiciary and, in particular, the higher judiciary, without any material in support thereof. In the interview Shri Prasant Bhusan went on to say that although he did not have any proof for his allegations, half of the last 16 Chief Justices were corrupt. He also made a serious imputation against the Hon'ble the Chief Justice of India, Justice S.H. Kapadia, as His Lordship then was, alleging misdemeanor with regard to the hearing of a matter involving a Company known as Sterlite, in which Justice Kapadia had certain shares. The Hon’ble Supreme Court requested Mr. Harish N.Salve, learned Senior Advocate, to assist the Court as Amicus Curiae in the matter whether on the basis of the prayers made in the application, this Court should take suo motu cognizance of the alleged contempt said to have been committed by the Senior Advocate and Chief-Editor in the application which was numbered as Contempt Petition (Crl.) No.10 of 2009. The matter was, thereafter, heard at length by the Apex Court on the question of maintainability of the contempt proceedings and also on the question as to whether this Court should take suo motu cognizance and proceed accordingly. Mr. Ram Jethmalani, learned Senior Advocate appearing for Mr. Prashant Bhushan, Advocate, submitted that the contempt proceeding was not maintainable not only on account of the provisions of Section 15 of the Contempt of Courts Act, 1971, but also in view of the 1975 Supreme Court Rules regarding proceedings for Contempt. He submitted that the report published in Issue No.35 of Volume 6 of Tehelka magazine dated 5th September, 2009, which comprised the contents of the interview given by Mr. Prashant Bhushan to the Tehelka magazine, had been placed before the Court on 6th November, 2009 and upon hearing the counsel present, the Court directed the matter to be taken on board and directed notice to issue. It was argued by Mr. Jethmalani that in relation to matters involving contempt of the Supreme Court, Rules have been framed by the Supreme Court itself under powers vested in it under Section 23 of the Contempt of Courts Act, 1971, read with Article 145 of the Constitution of India. The said Rules described as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, laid down the procedure to be followed in matters relating to taking of cognizance of criminal contempt of the Supreme Court under Section 15 of the Contempt of Courts Act, 1971. He further submitted that Rule 3 of the aforesaid Rules enables the Court to take action in a case of contempt other than the contempt committed in the face of the Court and provides as follows : "3. In case of contempt other than the contempt referred to in rule 2, the Court may take action: - (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General." He also submitted that the order passed on 6th November, 2009 was not on suo motu cognizance taken by this Court, nor on a petition made by the Attorney General for India or Solicitor General of India and must, therefore, have been made under Rule 3(c) on a petition made by Mr. Harish N. Salve, Senior Advocate, in which case, the same ought not to have been entertained without the consent in writing of the Attorney General or Solicitor General. Mr. Jethmalani submitted that in that view of the matter, the contempt proceedings were without jurisdiction and could not be proceeded with. Mr. Jethmalani also urged that even Rule 6 of the aforesaid Rules had not been followed, as notices have not been issued to the respondents in Form 1, as prescribed and the proceedings were, therefore, liable to be discontinued on such ground as well.In support of his aforesaid submissions, Mr. Jethmalani referred to and relied upon the case of P.N. Duda vs. P. Shiv Shanker & Ors. [(1988) 3 SCC 167], in which the provisions of Section 15(1)(a) and (b) of the Contempt of Courts Act, 1971, read with Explanation (a) and Rule 3(a), (b) and (c) of the Contempt of Supreme Court Rules, 1975, had been considered in paragraphs 53 and 54 of the judgment. It was pointed out that a direction had been given by this Court that if any information was lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. On the other hand, such a petition was required to be placed before the Chief Justice for orders in Chambers and the Chief Justice could decide, either by himself or in consultation with the other judges of the Court, whether to take any cognizance of the information.Mr. Jethmalani also referred the case of Bal Thackrey vs. Harish Pimpalkhute & Ors. [(2005) 1 SCC 254], wherein in the absence of the consent of the Advocate General in respect of a contempt petition filed by a private party under Section 15 of the Contempt of Courts Act, without a prayer for taking suo motu action of contempt, was held to be not maintainable. Mr. Jethmalani urged that the power vested in the High Courts and the Supreme Court under the Contempt of Courts Act, 1971, was a regulatory measure imposing a fetter on a citizen's fundamental right to freedom of speech and would have to be invoked and exercised with utmost caution so as not to infringe upon such fundamental right. The Hon’ble Apex Court while rejecting the above said contents raised by Shri Jethmalani stated that Shri Prashant Bhushan, Senior Advocate, in an interview given to the Tehelka magazine deliberately aimed at tarnishing the image of the judiciary as a whole, and, in particular, a sitting Judge of the Supreme Court, in the eyes of the general public without any foundation or basis therefore. By publishing the said interview, the Chief Editor was also responsible for lowering the dignity of this Court in the eyes of all stake holders in the justice delivery system. Prima facie, a case for issuance of notice having been made out, the Hon'ble Chief Justice of India directed issuance of notice to the Respondents to show cause in regard to the allegations contained in the application filed by the learned Amicus Curiae. It was further stated by the Apex Court that the error committed by the Registry of the Supreme Court in placing the matter on the judicial side instead of placing the same before the Hon'ble Chief Justice of India on the administrative side, is an administrative lapse which does not reduce the gravity of the allegations.

approaching the court with clean hand- extent of principle

In the matter of Ramjas Foundatiob and other v. Union of India and others decided on 9-11-2009, Hon'ble Supreme Court of India while deciding on the principle- 'that a person should approach the court with clean hand', held that:
"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 bearing on adjudication of the issue(s) arising in the case. In Dalglish v.Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B.observed: “It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward. In Castelli v. Cook (1849) 7 Hare, 89, 94 Wigram V.C. stated the rule in the following words: “A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.” In Republic of Peru v. Dreyfus Brothers & Company 55 L.T. 802, 803, Kay J. held as under:
“I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never
hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith in the Court when ex parte applications are made.”
The same rule was restated by Scrutton L., J in R. v. Kensington Income Tax Commissioner (1917) 1 K.B. 486. The facts of that case were that in April, 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicant for the year ending April 5, 1913, in respect of profits arising from foreign possessions. On May 16, 1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicant was not a subject of the
King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending April 5, 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother’s house, 213,
King’s Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending April 5, 1914, for temporary purposes on visits, and spent part of the time at 213, King’s Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply, it appeared that in February, 1909, a leasehold house, 213, King’s Road,Chelsea, had been taken in the name of the applicant’s brother. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant. The Divisional Court without
dealing with the merits of the case discharged the rule on the ground that the
applicant had suppressed or misrepresented the facts material to her application. The Divisional Court observed that the Court, for its own protection is entitled to say “we refuse this writ of prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us”. On appeal, Lord Cozens-Hardy M.R. and Warrington L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed that the appeal should be dismissed observed:“and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.” The above noted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands –Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath
(1994) 1 SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. SAIL (2008) 12 SCC 481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141 and Dalip Singh v. State of U.P. (2010) 2 SCC 114. In the last mentioned judgment, the Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed: “For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used
to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means
for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”