Vol-IV August, 2008

Part-7

IMPORTANT CASE LAWS

Compiled by

From

Tamil Nadu State Judicial Academy

Chennai – 28
 SUPREME COURT CITATIONS

 (2008) 5 MLJ 1388 (SC)

Bikoba D. Gaikwad Vs. Hirabai M.Ghorgare

Section 54 – Limitation Act (36 of 1963), Articles 136 and 137 – Suit for partition

filed by respondents and a decree was passed – Application in terms of Section 54 of Code filed

for sending said decree to District Collector for partition – Applicability of provisions of

Limitation Act – Impugned order passed by High Court – No executable final decree drawn

working out rights of parties dividing properties in terms of shares declared in preliminary decree

– Preliminary decree had only declared shares of parties – Properties liable to be partitioned in

accordance with those shares by Commissioner to be appointed in this behalf – Admittedly no

Commissioner in this behalf – Admittedly no Commissioner appointed and no final decree

passed relating to all – As such, Articles 136 and 137 of Limitation Act would not apply -

Appeal dismissed.

 (2008) 5 MLJ 1386 (SC)

Sudhir Kumar Rana Vs. Surinder Singh

Section 166 Motor Vehicles Act – Determination of contributory negligence – No

finding as to claimant driving the vehicle in rash and negligent manner – Therefore he has not

contributed to the accident – Finding as to contributory negligence set aside – Claimant entitled

to entire amount of compensation – Appeal allowed.

 (2008) 2 MLJ (Crl) 1644 (SC)

 Sections 320 and 357, Cr.PC

Manish Jalan Vs. State of Karnataka

Indian Penal Code (45 of 1860), Sections 279 and 304A – Conviction and sentence
under Sections 279 and 304A, Indian Penal Code, 1860 – Appeal – No ground to interfere with
conviction – As such, conviction of appellant maintained - Offences punishable under Sections
279 and 304A, Indian Penal Code, 1860 not compoundable – However it was rash and negligent
act simpliciter and not case of driving in inebriated condition – Mother of victim has no
grievance against appellant – Substantive sentence of imprisonment reduced to period already
undergone – Imposition of fine affirmed – Appellant directed to pay an amount of Rs,1,00,000/-
to mother of victim as compensation – Appeal partly allowed.

 (2008) 2 MLJ (Crl) 1666 (SC)

Narcotic Drugs and Psychotropic Substances Act (61 of 1985)

State of Rajasthan Vs. Udai Lal

Section 8 read with Section 15 and Section 36B – Conviction and sentence – Impugned order

of High Court acquitting respondent/accused – Appeal by State – Material aspects not properly

considered by High Court – P.W.s 5,6,10 and 11 belong to Police Department – However High

Court has not analysed and adduced any reason for not accepting their evidence except pointing

out minor contradictions here and there – High Court failed to analyse evidence in proper

perspective and highlighted minor irregularities/contradictions and acquitted accused on flimsy

grounds without assigning sound reasons – Impugned order set aside and matter remitted for

fresh disposal.

 (2008) 2 MLJ (Crl) 1678 (SC)

 Section 138, Negotiable Instrument Act

Southern Steel Limited Vs. Jindal Vijayanagar Steel Limited

Complaint – Criminal Proceedings – Petitions for quashing same – Impugned order

passed by High Court – Huge purchases made by appellant Company knowing fully that it was

declared sick – Fact that purchases were made with clear promise to repay could not be disputed

by appellants – Intention of appellants could be gathered by their subsequent acts, conduct and

behavior of taking shelter under provisions of Sick Industrial Companies (Special Provisions)

Act, 1985 (1 of 1986) – Appellants not entitled to any relief under Article 136 of Constitution of

India, 1950 – Appeals dismissed.

 (2008) 2 MLJ (Crl) 1747 (SC)

Juvenile Justice (Care and Protection) Act (56 of 2000)

Jyoti Prakash Rai @ Jyoti Prakash vs. State of Bihar

Section 20 – Indian Penal Code (45 of 1860), Section 302 – Killing schoolmate

delinquent juvenile – Determination of age – Incident on 12.5.2000 – Juvenile Justice (Care and

Protection) Act, 2000 effective 1.4.2001 – Two Medical Board constituted – Medical Board on

24.4.2001 opined Appellant age to be between 18 to 19 years – Medical Board constituted on

29.7.2001 opined similarly – Act is indisputably a beneficial legislation – Principles to be

applied only for purpose of interpretation of statue – Not for arriving conclusion, whether a

person is juvenile or not – Medical Report determining age – Is not conclusive in nature and

never been considered by Courts of law – Age determined by Doctor though be given flexibility

of two years on either side – Applying the test, age of appellant as on 1.4.2001 would be 18 years

above and not below 18 years of age – School Leaving Certificate and Horoscope produced were

found to be fabricated – Hence no exception could be taken – No merit – Appeal dismissed.

 HIGH COURT CITATIONS

 (2008) 5 MLJ 1249

Chennai City Municipal Corporation Act (1919)
A.Arputharaj Vs. Corporation of Chennai

Section 226 of this Act – Constitution of India (1950), Articles 21 and 226 – Madras

City Police Act (1888), Section 41 – Petition to prevent holding of public meeting in a busy

thorough fare – Petition in public interest – It is for Commissioner of Police and Commissioner

of Corporation to give permission regulating use of public roads and streets for purpose of

holding meetings – Both authorities directed to strictly follow guidelines issued in matter of

granting permission – Directions issued – Writ petition disposed of.

 (2008) 5 MLJ 1445

S.Muthu Vs. R.Chandramohan

Order 2 Rule 2 CPC – Bar of Suit – First Suit for partition, does not include two

items of properties, described in the second suit – No reason for not including the same in the

earlier suit – Cause of action for both the suits one and the same – No leave obtained for filing

the subsequent suit – Subsequent suit is legally barred – Appeals dismissed.

 (2008) 5 MLJ 1439

Metropolitan Transport Corporation Ltd Vs. N.Shanmugam

Motor Vehicles act (59/1988) Section 166 – Permanent disability – Award of

lumpsum compensation – Awarding of lumpsum compensation at uniform rate, irrespective of

the age of the injured will amount to treating unequals, equally – Lumpsum amount of

compensation may range from Rs.1,000/- to Rs.2,000/- per one percentage disability – Maximum

rate shall be applicable for young people and minimum rate in case of elders – CMA and cross

objections, allowed in part

 (2008) 5 MLJ 1511

Code of Civil Procedure (5 of 1908)

T.S.Ganesan Vs. Parvatham Ammal

CPC Section 100 – Hindu Succession Act (30 of 1956), Section 14(1), 14(2) – Scope

of Section 14(1) – Suit filed for declaration and injunction – Contended plaintiff has only life

interest and no right to alienate – Trial Court found that suit property given in lieu of

maintenance – Suit dismissed – Confirmed by appellate court – Challenged as pre-existing right

of maintenance is question of fact to be pleaded specifically – Admitted in Will not be mentioned

as to the factum of maintenance – Recognition of pre-existing right – To eliminate gender based

– to enlarge the limited interest vested in a female Hindu – Section 14(1) only will apply –

Second appeal dismissed.

 (2008) 5 MLJ 1457

Order 9 Rule 9, Order 9 Rule 13, Section 141, CPC

S.P.Kaveri Achi Vs. C.T.Ramasamy

Section 141 – Indian Succession Act (39 of 1925), Sections 222, 263, 265, 268, 276,

298 – Original Side Rules of the Madras High Court, Order 36 Rule 11 – Application to revoke

order of probate filed – Dismissed – Challenged – Contested set aside application not filed under

Order 9 Rule 13, CPC but under 263 of Indian Succession Act – Non mentioning of the

provision will not debar applicant from getting benefit – Ex parte order made when there was

advocates boycott – Sufficient cause shown – Provisions of Order 9 Rule 13 applicable to

probate proceedings – Ex parte order granting probate set aside.

 (2008) 5 MLJ 1490

S.M.Sait Vs. Superintending Engineer, National Highways Circle

Constitution of India Article 226 – Order intimating the class-I contractor, that he is

not pre-qualified for the contract, challenged in writ petition – Impugned order is a non-

speaking one – It is well settled that reasoning is the heart-beat of every conclusion and without

the same, the conclusion becomes defunct – Affected party should know, why the decision was

made against him – One of the salutary requirements of natural justice is spelling out the

reasons for the order made – Impugned order set aside – Writ petition disposed off.

 (2008) 5 MLJ 1465

Electricity (Supply) Act (54 of 1948)

T.N.E.B. Vs.Madasamy Konar

Section 26 – Indian Electricity Act (9 of 1910), Sections 12(1)(c) and (e), 19 –

Plaintiff owner of land adjoining highway – Access to highway blocked by installation of

transformer – Suit for mandatory injunction allowed in appeal – Right of electricity Board to

install transformer on any road margin, in public interest -Said right vis-à-vis individual’s

private right – In Second appeal, held, plaintiff’s right of access to highway, private right – If

said right obstructed, plaintiff entitled to maintain action – Right of individual cannot be

snatched away – Moreover, installation of transformer also posses a threat to children.

 (2008) 2 MLJ (Crl) 1497

Code of Criminal Procedure, 1973 (2 of 1974)

S.Udayakumar Vs. State

Advocate given opinion for the bank charged with offences - under
Sections 467, 468, 471, 477A and 420 read with Section 100 of Indian Penal Code, (45 of 1860)
– Legal advisor is supposed to play the role of document expert – In absence of any evidence
against the legal advisor in forging the valuable securities – Quash petition allowed dismissing
the complaint filed against the Legal advisor.

 (2008) 2 MLJ (Crl) 1492

 Section 174 Cr.P.C

Anjala @ Kamatchi Vs. State

Offence under Section 174 Code of Criminal Procedure, 1973 altered to

302 and 201 of Indian Penal Code (45 of 1860) – Appeal against order of conviction for offences
under Section 302 read with Sections 109 and 201 of Indian Penal Code, 1860 – Infanticide of
female child – Post-Mortem report revealed death due to Madar poison – Circumstantial
evidence valid – Conviction and sentence imposed upheld – Appeal dismissed.

 (2008) 2 MLJ (Crl) 1502

Code of Criminal Procedure Section 193 read with Section 319

Krishnammal Vs. Revenue Divisional Officer

Section 193 read with Section 319 – Husband of petitioner was murdered in police
lock up- Alleged complicity of Sub-Inspector in commission of crime – Petition to include him
as one of accused – Impugned order dismissing same – Revision petitioner and other witnesses
clearly stated in their statements about involvement of said Sub-Inspector in commission of
crime – But Revenue Divisional Officer failed to include him as one of accused – Court below
without looking into correct legal position erroneously dismissed petition – Impugned order set
aside – Revision petition allowed.

 (2008) 2 MLJ (Crl) 1552

Section 313, Cr.P.C

Marimuthu Vs. State

Questioning of accused – Contention, entire prosecution evidence as to incriminatory

circumstances, put together in single question to accused – Accused prejudiced thereby – Clear
from evidence, held, entire prosecution evidence not clubbed into single question – But
separately and distinctly put – Defence contention rejected.

 (2008) 2 MLJ (Crl) 1597

 Sections 482, 156(3), 200 to 204 Cr.P.C

Periyasamy Vs. State

Order passed under Section 156(3) by Magistrate under challenge – Complaint filed
against the Petitioner under Sections 379 and 420 Indian Penal Code (45 of 1860) – Magistrate
referred to Police investigation – Prayer itself only for taking cognizance – Two options for the
Magistrate on Private complaint filed before him – Order referring to Police Investigation is well
within the competence and Power of Magistrate – Needs no interference Criminal Original
Petition dismissed.

 (2008) 2 MLJ (Crl) 1521

Evidence Act (1 of 1872) Sections 3 and 27

Sankar @ Krishnan Vs. State

Indian Penal Code (45 of 1860), Sections 302 and 404 – Murder for gain alleged
Circumstantial evidence – Recovery of jewels and other objects at instance of accused – Trial
Court relying on said recoveries – Conviction and life sentence – Defence contention
contradicting evidence by witnesses – Pawn broker from whom jewels recovered, unable to
identify person who pledged said jewels – Pledge receipt (pawn ticket) relating thereto, produced
by pawnbroker himself – Prosecution not produced entire book maintained by pawn broker –
Jewels worn by deceased at time of death not mentioned in F.I.R. nor in witnesses’ statements –
Other objects recovered as stated by witnesses, not mentioned in observation mahazar –
Unbelievable that said object, lock key and wire used for strangling deceased, recovered from
house of deceased pursuant to confession by accused – Recovery of jewels and said other objects
highly doubtful – Prosecution’s failure to prove said recoveries throws suspicion on prosecution
case – Missing link in chain of circumstances – Prosecution not proved its case beyond
reasonable doubt – Accused, hence, entitled to benefit of doubt, to be acquitted.

 (2008) 2 MLJ (Crl) 1528

Section 325 , I.P.C.

Marimuthu Vs. State

 I.P.C Section 304 Part-II - Offence under – Conviction and sentence – Appeal
by accused – It is not established medical evidence that death was direct result of attack on
deceased - It is not established that internal injury caused was sufficient to cause death in
ordinary course of nature – It could not be definitely said that accused had all knowledge about
causing internal injury by his act which could lead to death – As such, conviction and sentence of
accused under Section 304 Part II set aside – Accused convicted under section 325 I.P.C 1860 –
Appeal partly allowed.

 (2008) 2 MLJ (Crl) 1731

Section 439

S.Balugopal vs. Inspector of Police

Anticipatory bail – Petition for – Complainant against petitioner/Doctor with regard

to surgery done to de facto complainant’s child for removing his left testis – De facto
complainant alleged that removal of left testis unnecessary one and petitioner had no
authority to remove the organ – With regard to necessity of removal of testis there
seems to be divergent of opinions – It is not proper for Court to conclude at present
stage as to whether removal of child’s left testis is necessary or not – Though de facto
complainant attributes motive to act of petitioner, it is not proper at present stage to
infer that petitioner acted with any criminal intention – Going deep and analyzing
matter at present stage may cause prejudice to parties in proceedings either criminal
or civil – As such, petitioner could be enlarged on anticipatory bail – Petition
allowed.

 (2008) 2 MLJ (Crl) 1714

Arun Kumar vs. State by Inspector of Police

 Sections 302 read with Sections 34, 392 449 – Indian Evidence Act (1 of,
1872), Section 114(1) – Presumption, under-Sections 3 and 27 – Recovery of objects at instance
of accused – Said objects that of deceased- Evidence clear A1 and A2 participated in crime –
Murder, pre-planned on committed in course of another transaction, question of Ante-mortem
injuries on ear lobes of deceased – Doctor’s evidence, such injuries possible if ear studs pulled
forcibly – intention of accused, to steal, not to commit murder – Tear injury on earlobes of
deceased clinching evidence in favour of accused – Possible one an assailant suddenly attacked,
causing death – Presumption under Section 114 – Indian Evidence Act, 1872 cannot be extended
to hold accused guilty of murder – Conviction under Section 302 read with Section 34 I.P.C. set
aside – Conviction under section 392 read with Section 34 under Section 449, I.P.C. Upheld.

 (2008) 2 MLJ (Crl) 1707

Durai @ Durai Murugan vs. State

Sections 341 and 302 read with Section 341 – Code of Criminal
Procedure, 1973 (2 of 1974) – Criminal appeal against judgment of conviction for the offence
under Sections 341 and 302 read with Section 341, Indian Penal Code (45 of 1860) – No direct
eye witnesses – Most of the witnesses turned hostile – Death, due to homicidal violence –
Motive not proved – Conviction on fragile and feeble aspects – Accused acquitted – Appeal
allowed.