22 April, 2014
PUNJAB AND HARYANA HIGH COURT
For the Petitioner :- Mr. Sanjay Jain, Advocate.
Shri Behari Lal Charitable Trust - Petitioner
Shiv Batra and another - Respondents
For the Respondents :- Mr. Kanwaljit Singh, Senior Advocate with Ms. Sukhwinder Kaur, Advocate.
Kanwaljit Singh Ahluwalia, J. (Oral) - Petitioner - Trust filed a petition for eviction of the tenant. On the request of the petitioner, a Local Commissioner was appointed to submit the report. Thereafter, on 7.12.2009 an application was filed by the petitioner - landlord that a permission be granted qua Sh. Anil Malik, an expert witness to examine the premises and prepare a site plan and to report regarding the unauthorized construction in the premises in question by the tenant. This application was rejected on the ground that earlier also Pankaj Kumar, Advocate was appointed as Local Commissioner and he had inspected the premises and prepared the site plan. The Rent Controller dismissed this application vide impugned order dated 9.03.2010 on the ground that earlier petitioner - landlord had availed four effective opportunities and the site plan (Annexures P-7 & P-8) are also on record along with report of the Local Commissioner Annexure P-6.
22 April, 2014 by Puneet Batish · 0
16 April, 2014
SUPREME COURT OF INDIA
For the Petitioner :- Raj Kumar Mehta, Advocate.
Joshna Gouda - Appellant
Brundaban Gouda and Anr. - Respondents
For the Respondent :- Debasis Misra, Advocate.
J. Chelameswar, J. - Leave granted.
2. This appeal arises out of a judgment dated 18.2.2011 of the High Court of Orissa in Writ Appeal No. 114 of 2011.
3. The factual background of the litigation is as follows:-
- (A) Election to the post of Sarpanch of Kulagada Gram Panchayat in the District of Ganjam, Orissa were held in the year 2007. The appellant, the first respondent and two others filed their nominations. The scrutiny of the nominations took place on 16th January, 2007. The returning officer held all the four nominations valid.
- (B) Subsequently, except the appellant and the first respondent, the other two candidates withdrew from contest. Election took place on 17th February, 2007, wherein the appellant herein was declared elected.
16 April, 2014 by Puneet Batish · 0
ANDHRA PRADESH HIGH COURT
For the Petitioner :- Mr. B. Narasimha Sharma, Advocate.
R. Vijayudu - Petitioner
N. Ramachandra Reddy - Respondent
D.S.R. Varma, J. - Despite service of notice, none appears for the respondents.
2. However, since the legal position is settled, I deem it fit to dispose of the present civil revision petition at the admission stage itself.
3. Heard the learned Counsel for the petitioner.
SUPREME COURT OF INDIA
Criminal Appeal No. 1685 of 2007 (Arising out of Special Leave Petition (Criminal) No. 6404/2007). D/d. 7.12.2007.
For the Appellant :- Dinesh Kumar Garg, Advocate.
Sakiri Vasu - Appellant
State of U.P. and others - Respondents
A. Criminal Procedure Code, Section
(1) Magistrate has power to direct police to register FIR.
(2) Magistrate can monitor investigation.
(3) Magistrate can order reinvestigation and re-opening of investigation on submission of final report by Police if investigation not done satisfactorily.
(4) Magistrate, however, cannot direct C.B.I. to investigate. [Para 27]
B. Criminal Procedure Code, Sections 156(3) and 154 - Criminal Procedure Code, Section
(1) In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
(2) Magistrate can order re-opening of the investigation even after the police submits the final report.
(3) Magistrate can monitor investigation to ensure that the investigation is done properly. 2007(4) RCR(Crl.) 115 : 2007(5) RAJ 37 (SC) and AIR 1980 SC 326 relied. [Paras 13, 14, 15, 16 and 27]
C. Criminal Procedure Code, Section
D. Doctrine of implied power - When any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective - Further held :-
(1) The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation.
(2) An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. [Paras 18, 19, 20 and 21]
E. Criminal Procedure Code, Section
F. Delhi Special Police Establishment Act, 1946, Sections
No one can insist that an offence be investigated by a particular agency - An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. 1997 Cr.L.J. 63 relied. [Para 10]
G. Criminal Procedure Code, Section
First remedy of complainant is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. - If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. - Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. - Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies. 2006(1) RCR(Crl.) 450 : 2006(1) Apex Criminal 166 (SC), 2007(4) RCR(Crl.) 115 and 2007(5) RAJ 37 (SC) relied. 2003(3) RCR(Crl.) 556 : 2004(1) Apex Criminal 325 (SC) distinguished. [Paras 11, 26 and 27]
G. Criminal Procedure Code, Section
Cases referred :
CBI v. Rajesh Gandhi, 1997 Cr.L.J 63.
Mohd. Yousuf v. Smt. Afaq Jahan, 2006(1) RCR(Criminal) 450 : 2006(1) Apex Criminal 166 : JT 2006(1) SC 10
Dilawar Singh v. State of Delhi, 2007(4) RCR(Criminal) 115 : 2007(5) RAJ 37 : JT 2007(10) SC 585.
State of Bihar v. A.C. Saldanna, AIR 1980 SC 326.
ITO, Cannanore v. M.K. Mohammad Kunhi, AIR 1969 SC 430.
Union of India v. Paras Laminates, AIR 1991 SC 696.
Reserve Bank of India v. Peerless General Finance and Investment Company Ltd., AIR 1996 SC 646.
Chief Executive Officer & Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu, 1996(11) SCC 23.
J.K. Synthetics Ltd. v. Collector of Central Excise, AIR 1996 SC 3527.
State of Karnataka v. Vishwabharati House Building Co-op Society, 2003(2) SCC 412.
Savitri v. Govind Singh Rawat, 1986(1) RCR(Criminal) 83 : AIR 1986 SC 984.
Union of India v. Prakash P. Hinduja, 2003(3) RCR(Criminal) 556 : 2004(1) Apex Criminal 325 : 2003(6) SCC 195.
CBI v. State of Rajasthan, 2001(1) RCR(Criminal) 574 : 2001(3) SCC 333.
R.P. Kapur v. S.P. Singh, AIR 1961 SC 1117.
Secretary, Minor Irrigation & Rural Engineering Services U.P. v. Sahngoo Ram Arya, 2002(3) RCR(Criminal) 413 : 2002(2) SCT 1090 : 2002(5) SCC 521.
14 April, 2014
SUPREME COURT OF INDIA
Mardia Chemicals Ltd. etc. etc. - Petitioners
Union of India and Ors. etc. etc. - Respondents
14 April, 2014 by Puneet Batish · 0
10 April, 2014
A patient operated upon for removal of abdominal tumor by a qualified doctor by adopting best procedure - Pancreas of patient slightly damaged - Death of patient after about six months - No medical negligence.
Medical negligence - An error in judgment is not necessarily negligence.
It is a landmark judgment regarding Medical negligence based on leading cases of medical negligence both in India and other countries especially U.K.
SUPREME COURT OF INDIA
Civil Appeal No. 1385 of 2001
Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, D/d. 10.02.2010
For the Respondent :- Manvendra Verma, Sudhir Vats, Sanveer Mehalwal (for Ms. Kamakshi S. Mehlwal), Parmanand Gaur (N.P.), Sudhir Kumar Gupta (N.P.), Somnath Mukherjee, (N.P.) and Ankit Gupta (for Maninder Singh), Advocates.
A. Consumer Protection Act, 1986, Sections 21 and 2(1)(a) - Medical negligence - Deficiency in Service - A patient operated upon for removal of abdominal tumor by qualified doctor by adopting best procedure - Pancreas of patient slightly damaged - Death of patient after about six months - No medical negligence.
ON FACTS :-
Patient had tumor in abdomen - Surgical operation was carried out for removal of abdominal tumor and tumor was removed - During surgery body of pancreas was damaged which was treated - Second surgery was carried out by an other expert doctor - After that the patient obtained treatment from AIMS - Death of the patient after about 6 months - Death attributed due to medical negligence and petition filed before National Commission claiming compensation of Rs 45 lakhs - Eminent doctors of AIMS examined and medical literature brought into evidence - National Consumer Commission found that there was no medical negligence - It came in evidence that hospital and doctors attended the deceased with utmost care, caution and skills and with devotion and dedication - The doctor who performed the operation had reasonable decree of skill and knowledge and adopted the procedure, which in their opinion was in the best interest of the patient - Finding of National Consumer Commission their doctor was not guilty of negligence - Finding upheld.
[Paras 20 to 25, 30, 32, 36, 46, 50 and 57]
B. Indian Penal Code, Section 304-A - Criminal negligence and civil negligence - Distinction - In criminal negligence, it has to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent - The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences - Further held :-
To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence - It must be the causa causans; it is not enough that it may have been the causa sine qua non.(1980) 1 SCC 30, AIR 1968 SC 1319, (1965) 2 SCR 622 relied.
[Paras 65, 66 and 67]
C. Tort - Medical negligence - Negligence by professionals such as Doctors, Lawyers , architects etc - The standard to be applied for judging, whether the person charged had been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession - It is not necessary for every professional to possess the highest level of expertise in that branch which he practices - A professional charged with negligence is to show that he acted in accordance with general and approved practice - It is enough to clear him of the charge - Further held :-
1. When the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
2. A mere deviation from normal professional practice is not necessarily evidence of negligence.
3. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment.
4. Doctors in complicated cases have to take chance even if the rate of survival is low.
5. Courts have to be extremely careful to ensure that professionals are not harassed unnecessarily - A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
6. A professional deserves total protection - The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished - Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.2005(3) RCR(Crl) 836 relied.
[Paras 69, 75 to 81]
D. Consumer Protection Act, 1986, Sections 21 and 2(1)(o) - Medical negligence - Deficiency in Service - Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall with the ambit of 'service' as defined in Section 2(1)(o) of the Consumer Protection Act, 1986 - Deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence - Further held:-
1. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution - Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
2. An error of judgment is not necessarily negligence
3. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.2005(3) RCR (Crl) 836, (1995) 6 SCC 651, (1996) 2 SCC 634 relied.
[Paras 81, 86 and 91]
E. Consumer Protection Act, 1986, Section 2(1)(o) - Medical negligence - While deciding whether the medical professional in guilty of medical negligence following principles must be kept in view :-
1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
9. It is our bounded duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.2005(3) RCR(Crl) 836 relied.
[Paras 94 and 95]
Cases Referred :Spring Meadows Hospital v. Harjot Ahluwalia through K.S. Ahluwalia, (1998) 4 SCC 39.
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128.
Bolam v. Friern Hospital Management Committee, (1957) I WLR 582 : (1957) 2 All ER 118.
Roe and Woolley v. Minister of Health, (1954) 2 QB 66.
Whitehouse v. Jordon, (1981) 1 All ER 267.
Chin Keow v. Government of Malaysia, (1967) WLR 813.
State of Haryana v. Smt. Santra, 2000(2) R.C.R.(Civil) 739 : (2000) 5 SCC 182.
Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332.
R. v. Lawrence, 1981(1) All ER 974.
R. v. Caldwell, 1981(1) All ER 961.
Andrews v. Director of Public Prosecutions, (1937) A.C. 576.
Syad Akbar v. State of Karnataka, (1980) 1 SCC 30.
Bhalchandra alias Bapu v. State of Maharashtra, AIR 1968 (SC) 1319.
Jacob Mathew v. State of Punjab, 2005(3) R.C.R.(Criminal) 836 : 2005(2) Apex Criminal 649 : (2005) 6 SCC 1.
Michael Hyde and Associates v. J.D. Williams & Co. Ltd., (2001) P.N.L.R. 233.
Hucks v. Cole, (1968) 118 New LJ 469.
Hunter v. Hanley, 1955 SLT 213.
John Oni Akerele v. King, AIR 1943 PC 72.
Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra, (1965) 2 SCR 622.
Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679.
Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651.
Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634.
C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam, (2009) 7 SCC 130.
10 April, 2014 by Puneet Batish · 1
08 April, 2014
Dishonour of cheque - Notice demanding payment sent to accused through registered post and complaint filed - If accused claims that he did not receive the notice, he can make payment within 15 days from receipt of summons from court to escape prosecution.
Service of demand notice on Drawer of cheque - Held :-When a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
SUPREME COURT OF INDIA
C.C. Alavi Haji Versus Palapetty Muhammed and Anr. D/d. 18.5.2007
For the Appellant :- K. Rajeev, Advocate.
For the Respondent :- A. Raghunath, G. Prakash and Ms. Beena Prakash, Advocates.
A. Negotiable Instruments Act, Section
Entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138.
B. Negotiable Instruments Act, Section
In this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. 2006(3) RCR(Crl.) 145 (SC) : 2006(3) RCR(Civil) 50 (SC) and 1999(4) RCR(Crl.) 309 (SC) approved.
[Paras 8 and 9]
C. Negotiable Instruments Act, Section
[Paras 10 and 9]
D. Negotiable Instruments Act, Section
E. General Clauses Act, 1897, Section 27 - Evidence Act, Section
Section 114 of Evidence Act, enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the General Clauses Act is a far stronger presumption - Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption.
F. Negotiable Instruments Act, Section
G. Negotiable Instruments Act, Section
Giving notice in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso.
[Paras 6 & 7]
H. Negotiable Instruments Act, Section
- (1) When a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
- (2) In view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. (1996)7 SCC 523 and 2004(4) RCR(Crl.) 933 (SC) relied.
J. Negotiable Instruments Act, Section
08 April, 2014 by Puneet Batish · 7
KARNATAKA HIGH COURT
For the Petitioner :- X. M. Joseph, Advocate.
M/s. Raja Associates and Ors. - Petitioner
Union of India and Ors.- Respondent
For the Respondent :- T. N. Raghupathy, M/s. Rao Associates.
A. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section
[Paras 12, 13 and 14]
B. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section
C. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section
[Paras 6 and 7]
ANDHRA PRADESH HIGH COURT (D.B.)
For the Petitioner :- Mr.B. Vijaya Bhasker, Advocate.
Sravan Dall Mill P. Limited -Petitioner
Central Bank of India & Anr - Respondent
For the Respondent :- Mr.B. Vijaya Bhasker, Advocate.
A. Securitisation and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002, Sections 2(1)(0), 13(2), 13(4), 17 - Constitution of India, Articles 226 - Classification of Account as NPA - Challenge against in writ jurisdiction - Invocation of jurisdiction under SARFAESI Act is pre-conditioned by account in question being classified as NPA - Classification of account as NPA must be in accordance with the directions or guidelines relating to assets classification issued by RBI - It would be open for the borrower to invoke writ jurisdiction of High Court seeking judicial review of such decision of creditor declaring his account as NPA, as such classification by itself leads to serious consequences of invocation of SARFAESI Act against the borrower - Classification and consequential invocation of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, by issuing notice under Section 13(2) of Act, cannot be redressed under Section 17 of that Act in absence of invocation of Section 13(4) - Therefore, the judicial review under Article 226 is the only remedy.
[Paras 15, 16 and 17]
B. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Sections 2(1)(o), 13(2), 13(4), 17 - Classification of account as NPA - Satisfaction of requirement under prudential norms as framed under Master Circular of RBI - Mere statements in reply that Bank has considered the same cannot be said to fulfil obligation of Bank under Sections 13(2), 13(3)(A) of Act - Right of borrower to have due consideration of objections is an important right of borrower where Bank is bound to apply its mind and inform borrower of its reasons as to why and how account is classified as NPA - The decision of Bank in classifying an account as NPA must be fully in conformity with prudential norms of RBI - It is incorrect to presume that once an NPA is always an NPA - Clause 4.2(4) of prudential norms specifically states that if the interest and principal are paid by the borrower in the case of loans classified as NPA, said account should no longer be treated as NPA and may be classified as sub-standard account - Action under SRFAESI Act with regard to said account would not be tenable and insolation to Section 13(2) of the Act.
[Paras 23, 24 and 25]
05 April, 2014
SUPREME COURT OF INDIA
Akkamahadevi - Petitioner
State of Karnataka - Respondent
Dr. B. S. Chauhan and Swatanter Kumar, JJ. - The sole accused/appellant Akkamahadevi was charged with an offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') The prosecution story was that the accused had developed intimacy with the Planning Officer, Krishnamurthy (PW-13), resident of Shimoga. She was shifted to Thirthahalli, wherein she was working as a 'Cook' in a hostel. In Shimoga, Saraswathi, the deceased had become friendly with her and was having an affair with PW-13.
05 April, 2014 by Puneet Batish · 0
04 April, 2014
Sanction for prosecution of Public Servant - Prevention of Corruption Act prescribes no time limit to grant sanction with the result that many guilty Public Servants escape prosecution - Govt. asked to fix time limit. A private citizen has a right to file a complaint for prosecution of public servant in a corruption case. Interpretation of anti-corruption law - In a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. Prosecution of Public Servant - To grant or refusal to grant sanction for prosecution is not quasi judicial function of Authority - The person concerned is not required to be heard by Competent Authority.
SUPREME COURT OF INDIA
Civil Appeal No. 1193 of 2012 (Arising Out of Slp(C) No. 27535 of 2010)
For the Respondent :- Goolam E. Vahanvati, AG, Devadatt Kamat, Anoopam N. Prasad, Rohit Sharma, Advocates.
- (i) The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. 1984(2) SCC 500, relied [Paras 18, 19, 34 and 50]
C. Prevention of Corruption Act, 1988, Section 19 - Sanction for prosecution of a Public Servant in a corruption case - Contention that question of granting sanction for prosecution arises only at the stage of taking cognizance by court and not before that - Contention not tenable - This contention is neither supported by Section 19 of Prevention of Corruption Act nor the judicial precedents. [Para 19]
D. Prevention of Corruption Act, 1988, Section 19 - Criminal Procedure Code, Sections 190 and 173 - Meaning of word - Cognizance - Prosecution of Public Servant in Corruption Act - The term 'cognizance' has not been defined either in the 1988 Act or the Cr.P.C. - In legal parlance cognizance in "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially". 2005(2) RCR (Crl.) 463 : 2005(2) 58 : 1951 SCR 312, relied. [Paras 19 and 20]
E. Prevention of Corruption Act, 1988, Section 13 - Interpretation of anti-corruption law - Observation of Supreme Court about corruption :
- (i) The magnitude of corruption in our public life is incompatible with the concept of socialist, secular democratic republic.
- (ii) The duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption.
- (iii) In a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. [Para 45]
G. Prevention of Corruption Act, 1988, Sections 19 and 13 - Corruption case against a Public Servant - A private citizen has a right to file complaint against the public servant and submit an application to Authority to grant sanction for prosecution - Where such an application is made it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without delay though no time limit is mentioned in Section 19 of P.C. Act. [Para 51 and 52]
H. Prevention of Corruption Act, 1988, Section 19 - Sanction for prosecution of Public Servant in a corruption - Sanction of competent Authority is required under Section 19 of P.C. Act - This Section prescribes no time limit in granting sanction - The result is that many guilty Public servants escape prosecution - The Parliament should consider the constitutional imperative of Article 14 by introducing a time limit in Section 19 of the P.C. Act 1988 - Parliament may consider the guidelines given in the judgment. [Paras 51 to 55]
I. Prevention of Corruption Act, 1988, Sections 19 and 13(1)(d) - Offences allegedly committed by a Minister (Public Servant) under Prevention of Corruption Act - A private citizen has a right to maintain a complaint and apply to Competent Authority for grant of sanction for prosecution - Contention that the question of grant of sanction for prosecution of public servant charged with any of the offences enumerated in Section 19(1) arises only at the stage when the Court decides to take cognizance and any request made prior to that is premature - Contention not tenable. 1984(2) SCC 500, relied. [Paras 18, 19, 37, 40 and 41]
J. Prevention of Corruption Act, 1988, Section 19 - Criminal Procedure Code, Section 197 - Prosecution of a public servant for commission of Criminal offence - Grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter - While considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence - The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true - In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy. [Paras 27 and 31]
Cases Referred :C.B.I. v. Raj Kumar Jain, 1998(3) R.C.R.(Criminal) 656 : (1998) 6 SCC 551.
A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500.
Balakrishnan Ravi Menon v. Union of India, 2007(3) R.C.R.(Criminal) 956 : 2007(4) R.A.J. 247
Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
Dilawar Singh v. Parvinder Singh alias Iqbal Singh, 2005(4) R.C.R.(Criminal) 855
H.N. Rishbud and Inder Singh v. State of Delhi, (1955) 1 SCR 1150.
Habibullsa Khan v. State of Orissa, 1995(2) R.C.R.(Criminal) 604 : (1995) 2 SCC 437.
J. Jayalalitha v. Union of India, (1999) 5 SCC 138.
Jagjit Singh v. State of Punjab, (1996) Crl. Law Journal 2962.
K. Kalimuthu v. State, (2005) 4 SCC 512.
Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411.
Krishna Pillai v. T.A. Rajendran, 1990 (Supp) SCC 121.
Lalu Prasad v. State of Bihar, 2007 (1) SCC 49.
Legal Affairs v. Abani Kumar Banerjee, AIR 1950 Cal. 437.
Mahendra Lal Das v. State of Bihar, 2001(4) R.C.R.(Criminal) 589 : (2002) 1 SCC 149.
Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
Parkash Singh Badal v. State of Punjab, 2007(1) R.C.R.(Criminal) 1 : 2007(1) R.A.J. 71
Public Interest Litigation v. Union of India, 2005(4) S.C.T. 603 : 2005(4) R.C.R.(Criminal) 707
R. v. Horseferry Road Magistrates' Court Bennett, (1994) 1 AC 42 62.
R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312.
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183.
Ram Kumar v. State of Haryana, 1987(1) R.C.R.(Criminal) 367 : (1987) 1 SCC 476.
Sanjiv Kumar v. State of Haryana, (2005) 5 SCC 517.
Santosh De v. Archna Guha, (1994) Supp. 3 SCC 735.
Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288.
Shobha Suresh Jumani v. Appellate Tribunal Forfeited Property, 2001(2) R.C.R.(Criminal) 806
State of A.P. v. V. Vasudeva Rao, 2003(4) R.C.R.(Criminal) 917 : 2004(1) Apex Criminal 648
State of Bihar v. P.P. Sharma, 1991(2) S.C.T. 397 : 1991 Supp. 1 SCC 222.
State of H.P. v. M.P. Gupta, 2004(1) R.C.R.(Criminal) 197 : 2004(2) Apex Criminal 112
State of Karnataka v. Pastor P. Raju, 2006(3) R.C.R.(Criminal) 859 : 2006(2) Apex Criminal 687
State of M.P. v. Ram Singh, 2000(1) R.C.R.(Criminal) 784 : (2000) 5 SCC 88.
State of M.P. v. Mubarak Ali, 1959 Supp. (2) SCR 201.
State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372.
State of West Bengal v. Mohd. Khalid, 1995(1) R.C.R.(Criminal) 318 : (1995) 1 SCC 684.
Superintendent of Police (CBI) v. Deepak Chowdhary, 1995(4) S.C.T 766 : (1995) 6 SC 225.
Union of India v. Mahesh Chandra, AIR 1957 M.B. 43.
Vineet Narain v. Union of India, (1997) 5 SCALE 254 : 4 SCC 778.
Vineet Narain v. Union of India, (1998) 1 SCC 226. In (1996) 2 SCC 199.
Vineet Narain v. Union of India, 1996 (1) SCALE (SP) 42.
04 April, 2014 by Puneet Batish · 1