Order of the Magistrate refusing to take cognizance revisable by Sessions Court #indianlaws

Jun
6
2016


The order of the Magistrate refusing to take cognizance is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself. The Court of Sessions is, thus, not powerless to pass an order in its revisionary jurisdiction. 




Mere disregard of some code or procedure is not enough to establish guilt under Prevention of Corruption Act #indianlaws

Jun
6
2016


Where the attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter, prosecution under Prevention of Corruption Act is not warranted.

Mere disregard of relevant provisions of some Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused




HC to apply its mind while granting or non granting of appeal u/s 378 of CrPC #indianlaws

May
22
2016


 

In deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. In an appeal against acquittal, the High Court has full power to re- appreciate, review and reweigh at large the evidence on which the order of acquittal is founded and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate Court. If, on the basis of the entire evidence on record, the order of acquittal is illegal, unwarranted or contrary to law such an order can be set aside by an appellate Court. Various expressions, such as, 'substantial and compelling reasons', 'very strong circumstances' etc. do not curtail the authority of the appellate Court in interfering with an order of acquittal recorded by the trial Court.

 




Conviction cannot be based on the only circumstance of 'last seen together' #indianlaws

May
20
2016


A conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible.




Right to life include right to live with dignity; Human dignity is a constitutional value and a goal #indianlaws

May
20
2016


The rights that are guaranteed to differently abled persons under the Equal Opportunities, Protection of Rights and Full Participation Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has its roots in Article 21 of the Constitution. Article 21 provides for right to life and liberty. Right to life include right to live with dignity. Human dignity is a constitutional value and a constitutional goal.




Application of Part I of the Arbitration Act, 1996 is excluded where seat of Arbitration is outside India #indianlaws

May
20
2016


Where the parties choose a juridical seat of Arbitration outside India and provide that the law which governs Arbitration will be a law other than Indian law, part I of the Act would not have any application and, therefore, the award debtor would not be entitled to challenge the award by raising objections under Section 34 before a Court in India. A Court in India could not have jurisdiction to entertain such objections under Section 34 in such a case.




Power to release land from acquisition cannot be exercised arbitrarily and has be consistent with the doctrine of public trust #indianlaws

May
20
2016


Use of power for a purpose different from the one for which power is conferred is colourable exercise of power. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority. There could be no objection to acquisition of land for a compelling public purpose nor to regulated development of colonies, but entertaining an application for releasing of land in favour of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounted to transfer of resources of poor for the benefit of the rich; permitting profiteering at the cost of livelihood and existence of a farmer.




Waiting period in divorce by mutual consent waived after considering educational background of parties #indianlaws

May
16
2016


In this case, the Court after considering the educational background of the parties, and the entire facts and circumstances, held that the situation posed was peculiar where the Court should invoke its jurisdiction under Article 142 of the Constitution in order to ensure justice to the parties. With the above observation, the statutory period of six months was waived and the marriage between the parties was dissolved.




Family Court empowered to give declaration – no matter whether relief is affirmative or negative #indianlaws

May
16
2016


Supreme Court observed that under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view as the Family Courts Act, 1984, has an overriding effect on other laws.




It is not the form in which deed is clothed, but the nature of transaction, which is decisive #indianlaws

May
12
2016


A document, as is well known, must be read in its entirety. When character of a document is in question, although the heading thereof would not be conclusive, it plays a significant role. Intention of the parties must be gathered from the document itself but therefor circumstances attending thereto would also be relevant; particularly when the relationship between the parties is in question. For the said purpose, it is essential that all parts of the deed should be read in their entirety. In the instant case, the document in question had a condition that the amount mentioned when paid back within five years from the date of execution, the property would be returned and in the event of failure, the no right to claim back will exist. 








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