Legal Blog: April 2011

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Friday, April 29, 2011

Delhi High Court Stays Imposition of Service Tax on Lawyers

Source: The Statesman

In a relief to advocates across the country, the Delhi High Court today stayed a Central government notification levying service tax on practising lawyers. 

“The notification is stayed,” a Bench comprising Chief Justice Mr Dipak Misra and Mr Sanjiv Khanna said, on a petition by Delhi High Court Bar Association (DHCBA) challenging the Centre's notification. 

The Bench also issued notice to the Union government on DHCBA's plea and asked it to file its response within two weeks. The next hearing has been fixed for 23 May. The government had on 25 April notified the Legal Practitioners Bill, 2010 for imposing 10 per cent tax on the fee charged by lawyers for their legal services. The Bill was to be implemented from 1 May. 

Lawyers in the Delhi High Court and all the six Delhi districts courts had observed a day-long strike on 24 March, when the Bill was passed in the Parliament, to protest the finance Bill proposing levy of 10 per cent tax on the fee charged by them for rendering legal services to their clients. 

Delhi Bar Association president Mr Rajiv Khosla had said lawyers are against imposition of service tax on their profession and on services rendered by them to the firms and companies, besides the services given by legal firms to individuals. “Instead of imposing 10 per cent service tax on lawyers, the Centre should make efforts to stop corruption,” Mr Khosla had said.

Relief for Dinakaran as Supreme Court Stays Impeachment Proceedings

Source : Indlaw

In a major relief to Sikkim High Court Chief Justice P D Dinakaran, who is facing allegations of corruption, land grabbing and judicial misconduct, the Supreme Court today stayed the impeachment proceedings pending against him.

A bench comprising Justices H S Bedi and C K Prasad also issued notices to Vice-President and Rajya Sabha Chairman Hamid Ansari and senior advocate P P Rao, a member of the three-member inquiry committee asking them to explain why the notification appointing a three-member panel headed by sitting Supreme Court Judge Aftab Alam, should not be quashed. 

The apex court granted them two weeks time to respond to the allegation made in the petition filed by Justice Dinakaran.

The Supreme Court collegium, headed by the Chief Justice had recalled its earlier recommendation of elevation of Justice Dinakaran to the Supreme Court, following the media reports exposing corruption and land grabbing allegedly indulged in by him during his tenure as Chief Justice of Karnataka High Court. He was later shifted to Sikkim High Court. 

Senior Counsel Amarander Saran, appearing for Justice Dinakaran, contended before the court that Mr P P Rao was biased against him being a member of the lawyers' delegation that met the then Chief Justice K G Balakrishnan against his elevation to the Supreme Court. Therefore, a free and fair inquiry was not possible till the removal of Mr Rao from the panel. 

The third member of the panel is Karnataka High Court Chief Justice J S Khehar. 

A bench comprising Justices D K Jain and H L Dattu had yesterday recused from hearing the case.

Supreme Court Delivers Split Verdict on Ex-BCCI President’s Plea

Source : Indlaw

A two-judge bench of the Supreme Court today delivered a split verdict on a petition filed by former BCCI President AC Muthiah challenging the amendment made in BCCI Rules to enable N. Srinivasan to contest election for the post of BCCI secretary. 

Justice JM Panchal dismissed the petition while Justice Gyan Sudha Misra allowed the petition filed by Mr. Muthiah and declared the amendment made in BCCI Rules to favour Mr N. Srinivasan as null and void and discriminatory. 

Mr. Srinivasan has stakes in Chennai Super Kings, one of the teams participating in IPL tournaments and the BCCI Rules did not permit a person having stakes in any other tournament affiliated to BCCI to contest the election. The rule was amended just to favour Mr. Srinivasan so that he may contest for the post of BCCI secretary, the petitioner contended. 

Petitioner has also contended that the amendment was arbitrary and illegal and therefore it should be quashed. 

The case shall now be heard afresh by a larger bench which may also have a relook at the earlier Supreme Court judgment which had declared that BCCI is not a state under Article 12 of the Constitution. 

The two-judge bench directed that the matter be placed before the Chief Justice of India for constituting an appropriate bench.

Wednesday, April 27, 2011

CWG Scam: Suresh Kalmadi Sent to 8-days Police Custody


Former chief of the Commonwealth Games Organising Committee Suresh Kalmadi was on Tuesday sent to eight days police custody by a city court here. 

Kalmadi, who was arrested on Monday for alleged irregularities in awarding contracts for the October 2010 Games, had spent the night in CBI custody. 

66-year-old Kalmadi has been accused of awarding illegal contracts to a Swiss firm for Timing-Scoring-Result system for the Games causing a loss of Rs 95 crore to the exchequer. 

"I am granting him police custody till May 4," ordered Additional District Judge Talwant Singh. 

The judge also said that during this period, Kalmadi "would be medically examined after every 48 hours and could also meet relatives and counsellors everyday for 40 minutes." 

Kalmadi's arrival at the Patiala House court complex was very dramatic. An unemployed man flung a slipper at him as he was entering the complex escorted by a posse of policemen. The person, identified as Kapil Thakur, was immediately detained, police said.

Competition Commission of India Finalises New Notification for Mergers & Acquisitions

Source : Indlaw

The Competition Commission of India (CCI) is going to finalise a new notification on Corporate Mergers & Acquisitions (M&A) at its meeting on April 29 and gazette it on May 1, 2011. 

Its objective is to promote competitiveness in the market and safeguard the consumer interest, keeping in view the economic growth of the country said Mr Dharendra Kumar CCI Chairman, addressing an interactive meeting of representatives of CII, FICCI, Assocham and Indian Merchants’ Chamber and Law Firms organized by IMC on April 25 to consider the Commission’s discussion paper on Regulation of Combinations. 

The Union Minister of Corporate Affairs (MCA) Mr. Murli Deora, chaired the meeting and the Secretary to MCA, Mr. D K Mittal and Mr Kumar interacted with a galaxy of industrialists and top legal experts specializing in M&A. IMC President, Mr. Dilip Dandekar, welcomed the Minister and other distinguished speakers and members of the audience. 

Mr Deora later told reporters that a new policy on corporate affairs would be chalked out soon.

He said that his Ministry would also consult the Union Finance Ministry, RBI and SEBI before finalizing the notification for laying down Rules for M&A by corporates.

Monday, April 25, 2011

Circumstantial Evidence : The Law


The Supreme Court in Inspector of Police, Tamil Nadu v. John David has discussed the law relating to conviction based on Circumstantial Evidence. While discussing various judicial precedents on the topic, the Court held as under;

CASE ON CIRCUMSTANTIAL EVIDENCE

19.The principle for basing a conviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions.

20.This Court in the case of State of U.P. v. Ram Balak & Anr., reported at (2008) 15 SCC 551 had dealt with the whole law relating to circumstantial evidence in the following terms: - "11. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus: (SCC pp. 206-07, para 21) `21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.'

11. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10)

`(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'

`10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'

16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

These aspects were highlighted in State of Rajasthan v. Raja Ram, at SCC pp. 187-90, paras 9-16 and State of Haryana v. Jagbir Singh." 

21.In the light of the above principle we proceed to ascertain whether the prosecution has been able to establish a chain of circumstances so as not to leave any reasonable ground for the conclusion that the allegations brought against the respondent are sufficiently proved and established.

Scope and Ambit of Appeal against Acquittal : The Law

The Supreme Court in Inspector of Police, Tamil Nadu v. John David has discussed the scope and ambit of powers of the appellate court in an appeal against acquittal. While discussing various judicial precedents on the topic, the Court held as under;

APPEAL AGAINST ACQUITTAL


12. Before we enter into the merit of the case, we are required to deal with the contention of the counsel appearing on behalf of the respondent regarding the scope and ambit of an appeal against acquittal. Various decisions of this Court have dealt with the issue very extensively. Therefore, it would be suffice, if we extract few decisions of this Court laying down the law in this regard.

13.In the case of State of U.P. v. Ram Sajivan & Ors. reported at (2010) 1 SCC 529, one of us (Bhandari, J.) detailed the law in this regard as follows: -

"46. ................. This Court would ordinarily be slow in interfering in order of acquittal. The scope of the powers of the appellate court in an appeal is well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction.

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In Chandrappa v. State of Karnataka this Court held: (SCC p. 432, para 42)

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, `substantial and compelling reasons', `good and sufficient grounds', `very strong circumstances', `distorted conclusions', `glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of `flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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In Ghurey Lal v. State of U.P., one of us (Bhandari, J.) summarised the legal position as follows in paras 69 and 70: (SCC p. 477)

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision.

This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

In a recently delivered judgment of this Court in State of U.P. v. Banne, one of us (Bhandari, J.) summarised the entire legal position and observed that this Court would be justified in interfering in the judgment of the High Court in the following circumstances which are illustrative and not exhaustive: (SCC p. 286, para 28)

"(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

This Court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and compelling reasons to discard the High Court decision. When we apply the test laid down by this Court repeatedly in a large number of cases, the irresistible conclusion is that the High Court in the impugned judgment has not correctly followed the legal position."

14.In another decision of this Court in the case of Sannaia Subba Rao & Ors. Vs. State of A.P. reported at 2008 (17) SCC 225, one of us, has referred to and quoted with approval the general principles while dealing with an appeal against acquittal, wherein, it was clearly mentioned that; the appellate court has full power to review, relook and re-appreciate the entire evidence based on which the order of acquittal is founded; further it was also accepted that the Code of Criminal Procedure puts no limitation or restriction on the appellate court to reach its own conclusion based on the evidence before it.

15.In the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) reported at (2010) 6 SCC 1 this court held as follows: -

"27. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly against an order of acquittal:

(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.

(ii) The appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) The appellate court can also review the trial court's conclusion with respect to both facts and law. 

(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

16.Therefore, one of the settled position of law as to how the Court should deal with an appeal against acquittal is that, while dealing with such an appeal, the appellate Court has no restriction to review and relook the entire evidence on which the order of acquittal is founded. On such review, the appellate Court would consider the manner in which the evidence was dealt with by the lower Court. At the same time, if the lower Court's decision is based on erroneous views and against the settled position of law, then such an order of acquittal should be set aside.

17.Another settled position is that, if the trial Court has ignored material and relevant facts or misread such evidence or has ignored scientific documents, then in such a scenario the appellate court is competent to reverse the decision of the trial court.

18.Therefore keeping in mind the aforesaid broad principles of the settled position of law, we would proceed to analyse the evidence that is adduced and come to the conclusion whether the decision of the High Court should be upheld or reversed.

Loss of Law Suit Documents a Serious Matter: Bombay HC


The Bombay High Court has observed that it is necessary to conduct an inquiry before allowing re-construction of lost or untraceable law suit documents if issues disputing the application for reconstruction are raised by any party to the suit. 

The HC observed that loss of record of suit papers from the court premises was "undoubtedly a very serious matter" as mentioned by Additional Solicitor General Darius Khambata, especially since the rules require the administrative office to "permanently preserve" certain documents at the HC which is a court of record. 

Justice RM Sawant made this observation while passing orders in an application challenging the re-construction of a 1969 property suit. An MP government company had alleged that the re-construction was done at the behest of a law firm which was not authorized to represent the persons who had originally filed the suit that involves a high-stake property dispute. This contention was strongly opposed by lawyers for the other side. 

The judge who ordered an inquiry into the re-construction in the case at hand however also observed to avoid situations where disputes and challenges are raised later, "the office would have to devise some modality so that the record is maintained for posterity, and at least the decree/orders disposing of proceedings are maintained separately in a manner, beyond the scope of any wrong doing or mischief." 

The reconstruction of record of court documents is governed by a 1995 circular, which was issued precisely to cover situations of loss of record. "If there is a consensus between the parties the reconstruction would pose no problems, but if there is an issue between the parties on any ground, in my view, it is necessary to conduct an enquiry about the reasons by giving an opportunity to the parties to be heard and only then decide whether or not to order a reconstruction."

Panel Accuses Justice Dinakaran of Delaying Inquiry

Source : Indlaw

The Supreme Court panel, constituted to probe allegations against Sikkim High Court Chief Justice P D Dinakaran, has accused him of deliberately delaying the inquiry into the land grabbing case and judicial misconduct.

Justice Dinakaran is facing impeachment proceedings on the charges of corruption and land grabbing. He is due to retire in May next year.

The panel, headed by Justice Aftab Alam, yesterday rejected his application demanding that senior counsel P P Rao should be removed from the panel as he was a member of delegation, who met then Chief Justice of India K G Balakrishnan against his elevation to the Supreme Court. 

Two members of the panel, while rejecting his application, said Justice Dinakaran was wasting the time of the panel with the aim of deliberately delaying the inquiry against him as the panel has to submit the report by June 23 this year. 

The panel, which includes Karnataka High Court Chief Justice J S Khehar, also rejected another application filed by Justice Dinakaran for supply of documents. It ruled that the charges have already been supplied to him and granted him a day's time to file his response to the charges. The panel will proceed with the inquiry tomorrow. 

The panel also told Mr Dinakaran to uphold the sanctity of the high office he is holding and co-operate in the inquiry.

Justice Dinakaran, whose elevation to the apex court was put on hold after the allegation came to light, was shifted from Karnataka High Court to Sikkim High Court.

Aarushi Murder Case : Relief for Talwars

Source : Indlaw

In a reprieve for the parents of Aarushi Talwar, the Supreme Court today stayed till July 12 the proceedings in the trial court in Aarushi-Hemraj double murder case. 

The Talwars are the main accused in the case.

A Supreme Court bench comprising Justices B Sudershan Reddy and S S Nijjar granted four weeks time to petitioner Dr Rajesh Talwar and his wife Dr Nupur Talwar to file a rejoinder to the counter affidavit filed by the CBI. The probe agency has stated that both the parents are the only accused in the case. 

There is sufficient prima facie evidence against the two showing their involvement in the murder of their 14-year-old daughter and their domestic help Hemraj. 

A ninth standard student of DPS Noida, Aarushi was found murdered on May 15, 2008 at her Noida residence and the body of Hemraj was recovered two days later from the roof of the flat. 

Earlier, the CBI had filed a closure report that there was no sufficient evidence to charge sheet the dentist couple in the case though Dr Rajesh Talwar is the prime suspect. 

Dr Talwar approached Ghaziabad special CBI judge court against the closure demanding further investigation. 

The trial court rejected the closure report and summoned both the parents to face the trial in the double murder case.

Saturday, April 23, 2011

Rajesh Talwar 'misled' the Judiciary, CBI tells Apex Court


In another twist to the Aarushi -Hemraj double murder case, the CBI has accused dentist Rajesh Talwar of forging documents, concealing facts and misleading the Supreme Court to get relief from prosecution in the trial court. 

In an affidavit filed before the apex court, CBI's superintendent Neelabh Kishore alleged that Rajesh, in his appeal against the trial court, had deliberately taken a false plea that he was released on bail in July 2008 which was totally contrary to facts. 

A bench of justices B Sudershan Reddy and S S Nijjar which took on record the affidavit after it was mentioned by the CBI counsel said it would take up the issue on Monday when the matter would come up for hearing. 

The CBI clarified that Rajesh was released after the agency did not seek extension of his judicial custody as at that time the investigators did not find sufficient material against him. 

Seeking dismissal of the plea by Rajesh and his dentist wife Nupur challenging the criminal proceedings initiated against them for the murders, the CBI alleged the bail application annexed along with the appeal was forged as no such document existed. 

Contrary to the dentist's claim that he had moved a bail application under Section 437 of the Criminal Procedure Code, the CBI said that the trial court had ordered Rajesh's release after the agency filed an application under Section 169 of CrPc. 

The agency had then told the special court that it did not have sufficient evidence against him at that stage. 

The CBI further pointed out that Rajesh's bail claim was not mentioned in Nupur's separate appeal, challenging the same criminal proceedings against the Talwars. 

The CBI while referring to the "discrepancy" said Nupur had stated clearly that her husband was set free after CBI did not seek his further remand. 

According to the agency the trial court on March 3 issued bailable warrants that were executed against the couple on March 10, but the Talwars did not disclose this fact before the SC.

Friday, April 22, 2011

P.P. Rao Biased, Let Him Recuse Himself: Justice Dinakaran

Justice Dinakaran
Source : The Hindu

Justice P.D. Dinakaran on Wednesday raised a preliminary objection before the three-member panel, which is probing charges of corruption, land-grab and abuse of judicial office against him, demanding that one of its members, senior advocate P.P. Rao, recuse himself. Justice Dinakaran alleged that he was biased.

The panel, which included Justice Aftab Alam of the Supreme Court and Karnataka High Court Chief Justice J.S. Khehar, had issued the charge sheet to Justice Dinakaran in March, seeking his response by Wednesday.

Justice Dinakaran said he had already written to Rajya Sabha Chairman Hamid Ansari on April 8 saying Mr. Rao should not remain on the committee. But Mr. Ansari had not responded to his objection. Justice Dinakaran said Mr. Rao was part of a delegation of lawyers which met the then Chief Justice of India, K.G. Balakrishnan, in 2009 to oppose his elevation to the Supreme Court. Further, he said, the committee had acted beyond the scope and jurisdiction of the Judges (Inquiry) Act by conducting an investigation before the framing of charges.

Justice Dinakaran said the panel could not go beyond what was contained in the motion admitted in the Rajya Sabha, and that it had no jurisdiction to examine witnesses at the pre-enquiry stage.

Also, the panel was acting in an unconstitutional manner, levelling allegations against his family members, who had no nexus to the discharge of his judicial and administrative duties.

Justice Dinakaran alleged that the panel had contravened Articles 124 and 121, raking up personal issues against him and his family, even though the constitutional provisions expressly barred any such reference of a High Court or Supreme Court judge's personal life.

The committee will hear his objections on April 25.

The charges against Justice Dinakaran were levelled when he was Chief Justice of the Karnataka High Court. He was subsequently transferred to the Sikkim High Court.

Supreme Court Cancels Bail of Satyam Computers Ex-officials

Source : Indlaw

The Supreme Court today cancelled the bail application of Satyam Computers ex-official Subramani Gopala Krishnan. 

A bench comprising Justices P Sathasivam and B S Chauhan also cancelled the bail of another accused who was allegedly involved in the Rs 14,000 crore scam. 

The apex court today allowed the appeal of Central Bureau of Investigation (CBI) against the order of Andhra Pradesh High Court who had granted them bail. 

The apex court had earlier dismissed the review petition filed by former Satyam Computers Chairman B Ramalingam Raju, his brother D Ramaraju, ex-MD of Satyam and three others challenging the orders cancelling their bail. 

The accused persons are facing allegations of defrauding large number of investors of their hard earned money through manipulation and forgery of the accounts of the company to create a false impression among the investors that the company is financially sound while the real position was that IT was in the red. Raju had also allegedly transferred huge amount of funds to his son's company fraudulently.

PIL against Anna Hazare on Corruption Charges

Source : Indlaw

A Public Interest Litigation was filed today in the Delhi High Court seeking removal of social activist Anna Hazare from the panel of drafting committee of Lokpal Bill alleging that there are charges of corruption against him relating to the trust run by him. 

The PIL states that Anna Hazare was held guilty by former Supreme Court Judge Justice P B Sawant who was heading a judicial inquiry against him, and ruled that Hazare had misappropriated Rs two lakhs from Hindi Swaraj Trust run by him. 

The petition, filed by an NGO , National Anti-corruption Public Power, alleged that misappropriation of fund had occurred during the celebration of Hazare's birthday at his village Ralegaon-Siddhi in Maharashtra.

An inquiry was held by Justice Sawant who in his report submitted in 2005, held Hazare guilty of misappropriating Rs 2 lakh from the Hind Swaraj Trust which amounted to corruption, Justice Sawant had held. 

'The inquiry was held by a commission headed by Justice Sawant which after detailed inquiry submitted its report in 2005 saying that Hazare was indeed guilty of corrupt practices (involving misadministration of one of his trusts),' the petition said. 

The PIL alleged that according to the Commission's report, some of the workers of Hazare's Bhrastachar Virodhi Janandolan Trust were abusing the platform for anti social activities such as extortion of money and blackmailing. 

The Commission to inquire against Hazare was set-up in 2003 on the plea of certain ministers against whom Hazare had opened a front to expose their misdeeds. 

The Petitioner has filed certified documents to prove that there were corruption charges against Hazare and also one of the trusts (Hind Swaraj Trust) of Anna Hazare is un-registered but he has shown it to be as registered long back and has been receiving money illegally, claims the NGO president Hemant Baburao Patil. 

The petition also claims Hazare was once prosecuted and sent to jail by a minister in a defamation case though he was released within one day. 

However, no details of the case have been mentioned in the petition.

Saturday, April 16, 2011

Criminal Contempt of Court : The Law

The Supreme Court in Muthu Karuppan vs Parithi Ilamvazhuthi & Anr. has discussed the law relating to Criminal Contempt of Court under S. 2(c) of the Contempt of Courts Act, 1971. The relevant extracts from the judgment are reproduced hereinbelow;

6) In order to understand the above issue, it is relevant to refer Section 2(c) of the Act which defines criminal contempt as:

"(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalizes or tends to scandalize, of lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

7) Giving false evidence by filing false affidavit is an evil which must be effectively curbed with a strong hand. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent, but there must be a prima facie case of "deliberate falsehood" on a matter of substance and the court should be satisfied that there is a reasonable foundation for the charge. 

8) In a series of decisions, this Court held that the enquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of making false statement, more so, the court has to determine as on facts whether it is expedient in the interest of justice to enquire into offence which appears to have been committed.

9) The contempt proceedings being quasi criminal in nature, burden and standard of proof is the same as required in criminal cases. The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities, equally, the court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises. As observed above, the contempt proceeding being quasi criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings.

10) In exercise of the powers conferred on the High Court under Articles 215 and 225 of the Constitution of India and in terms of Section 23 of the Act, the Madras High Court Contempt of Court Rules, 1975 (in short `the Rules') have been framed. The said Rules prescribe procedure for initiating contempt and various steps to be adhered to. By drawing our attention to the Rules, Mr. Ganguli, learned senior counsel for the appellant submitted that Rules 4 and 8 have not been complied with. By emphasizing the principles in paras 12 and 16 of the decision of this Court in R.S. Sujatha vs. State of Karnataka & Ors., 2010 (12) Scale 556, learned senior counsel submitted that the contempt proceedings being quasi criminal in nature require strict adherence to the procedure prescribed under the rules applicable to such proceedings. He also pointed out that while sending notice, relevant documents have not been enclosed and the consent of Advocate General was not obtained for initiating contempt proceedings against the appellant. Insofar as the documents referred to being certain orders of the court, no serious objection was taken note of for not sending the same.

Consent of the Advocate General

11) The relevant provision which deals with cognizance of criminal contempt in other cases is Section 15 of the Act which reads as under:

"15. Cognizance of criminal contempt in other cases.--(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by--

(a) the Advocate-General, or

(b) any other person, with the consent in writing to the Advocate-General, or

(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer."

The whole object of prescribing procedural mode of taking cognizance is to safeguard the valuable time of the Court from being wasted by frivolous contempt petitions. In State of Kerala vs. M.S. Mani & Ors., (2001) 8 SCC 82, this Court held that the requirement of obtaining prior consent of the Advocate General in writing for initiating proceedings of criminal contempt is mandatory and failure to obtain prior consent would render the motion non-maintainable. In case, a party obtains consent subsequent to filing of the petition, it would not cure the initial defect and thus, the petition would not become maintainable.

12) In Bal Thackrey vs. Harish Pimpalkhute & Anr., AIR 2005 SC 396, this Court held that in absence of the consent of the Advocate General in respect of a criminal contempt filed by a party under Section 15 of the Act, taking suo motu action for contempt without a prayer, was not maintainable. 

13) However, in Amicus Curiae vs. Prashant Bhushan and Anr., (2010) 7 SCC 592, this Court has considered the earlier judgments and held that in a rare case, even if the cognizance is deemed to have been taken in terms of Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, without the consent of the Attorney General or the Solicitor General, the proceedings must be held to be maintainable in view of the fact that the issues involved in the proceedings had far reaching greater ramifications and impact on the administration of justice and on the justice delivery system and the credibility of the court in the eyes of general public.

14) It is clear from the recent decision of this Court in Prashant Bhushan's case (supra) that if the issue involved in the proceedings had greater impact on the administration of justice and on the justice delivery system, the court is competent to go into the contempt proceedings even without the consent of the Advocate General as the case may be.

...

23) We have already pointed out that while dealing with criminal contempt in terms of Section 2(c) of the Act, strict procedures are to be adhered. In a series of decisions, this Court has held that jurisdiction to initiate proceedings for contempt as also the jurisdiction to punish for contempt are discretionary with the court. Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. The person filing an application or petition before the court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the court. It is thereafter for the court to act on such information or not. [Vide Om Prakash Jaiswal vs. D.K. Mittal, (2000) 3 SCC 171] Further Section 15 of the Act as well as the Madras High Court Contempt of Court Rules insist that, particularly, for initiation of criminal contempt, consent of the Advocate General is required. Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt. In the present case, the above provisions have not been strictly adhered to and even the notice issued by the then Division Bench merely sought for explanation from the appellant about the allegations made by Respondent No. 1.

We Need a Clean Man in Black Robes: Chief Justice Kapadia


Concerned over judiciary's image coming under a cloud in the wake of corruption charges, Chief Justice S H Kapadia on Sarurday said there was a need for "clean man in black robe" and asked the political class not to protect corrupt judges. 

"We have to live by examples. We need a clean man in black robe to uphold the independence and integrity of the judiciary," the CJI said while cautioning the judges from inevitably ending up in the political arena. 

The CJI said judges should maintain self restraint and avoid being in touch with lawyers, political parties, their leaders or ministers and high ranking judges should not interfere in the administrative work of court lower to it. 

"Internal interference from a high ranking judge which, if resisted, could lead the lower ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt judges," Kapadia said at the fifth M C Setalvad memorial lecture. 

"A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions," he said. 

The CJI's remarks assume significance as the issue of corruption allegedly involving sitting judges P D Dinakaran and Soumitra Sen, who are facing impeachment proceedings in Parliament, were raised by other speakers. 

Senior advocates Anil Divan and P P Rao voiced serious concerns over judges being involved in corruption. 

The CJI began his speech by saying that "I am an eternal optimist and I can see that in future things are going to improve as far as integrity and as far as credibility of the Supreme Court is concerned." 

Kapadia said the judges should not accept any type of patronage and stick to judicial norms. 

"The judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such judges", he said. 

Kapadia stressed the need for protecting the integrity of judiciary saying "judges must keep the part of impartial, objective, fearless and independent justice alive". 

The CJI said he has avoided socialisation and even preferred not take the membership of any golf clubs as it would have left him mingling with advocates, politicians etc giving a negative impression to the people. 

"Frequent socializing with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his duties," he said. 

The CJI said there should be a fair criticism of judgements and irresponsible and illegitimate criticism should be avoided. 

"Public and media criticism of judges and judgments is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. 

"But, what I am concerned with is response to criticism, particularly, criticism, that is illegitimate and irresponsible. 

"In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare - what most people desire is justice which favours them."

Friday, April 15, 2011

Supreme Court Grants Bail to Binayak Sen

Source : Indlaw

The Supreme Court today granted bail to civil rights activist Binayak Sen who is serving life imprisonment on the charges of sedition and for having close links with Naxalites in Chhattisgarh. 

A bench comprising Justices Harjit Singh Bedi and C K Prasad ordered the release of Dr Sen on bail after hearing his counsel Ram Jethmalani who contended that the sentence awarded to Dr Sen is too harsh and he should be granted bail in view of the pendency of his appeal against the conviction before the Chhattisgarh High Court. 

Mr Jethmalani submitted that there was no evidence to show the links of the petitioner with Naxalites as he is opposed to all types of violence both by private organisation or individual as well as by the state. 

The apex court while granting the bail noted, 'No case of sedition is made out against the petitioner and the evidence is baseless. Possession of Maoist literature doesn't amount to his involvement in Maoists activities as there are so many other sympathisers of Maoists like Dr Binayak Sen.' Dr Sen approached the apex court against the High Court order which had rejected his bail application.

Tuesday, April 5, 2011

Supreme Court to Reconsider Collegium System

Source : Indlaw

An eleven-Judge Bench of the Supreme Court will reconsider the present collegium system of appointment of Supreme Court and High Court Judges under which its recommendations headed by the Chief Justice of India are binding on the government and the executive has no say in judicial appointments for superior courts.

A Bench comprising Justice Deepak Verma and B.S. Chauhan yesterday referred to a petition to the CJI S.H. Kapadia for constituting an appropriate bench to revisit the 1993 nine-judge bench judgement in advocates-on-record association case. 

The two judge bench made the reference after the Attorney General of India G.E. Vahanvati backed the petitioner NGO Suraj India Trust which contended that the collegium system has failed, constituted under the 1993 verdict which gave supremacy and primacy to the apex court collegium headed by CJI to form an opinion in consultation with the four other senior most judges of the apex court and his opinion remained binding on the government. 

Petitioner NGO contended that the executive must have a say in the appointment of Supreme Court and High Court Judges. 

CJI will have to constitute an 11-judge bench to revisit the 9-judge bench ruling of 1993.

Sunday, April 3, 2011

Right to Property of an Illegitimate Child : The Law

Justice Ganguly
The Supreme Court in Revanasiddappa & Anr. vs Mallikarjun & Ors. has examined the question whether an illegitimate child is entitled to a share in coparcenary property or his share is only limited to the self-acquired property of his parents under Section 16(3) of the Hindu Marriage Act? While examining the various judicial pronouncements on the subject the Court took a different view from earlier decisions and has accordingly referred the matter for reconsidered by a larger Bench of the Court. The relevant extracts from the judgment are reproduced hereinbelow;


12. Section 16(3) of the Hindu Marriage Act, 1955 reads as follows:

"16. Legitimacy of children of void and voidable marriages-

(1) xxx

(2) xxx

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

13. Thus, the abovementioned section makes it very clear that a child of a void or voidable marriage can only claim rights to the property of his parents, and no one else. However, we find it interesting to note that the legislature has advisedly used the word "property" and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general.

14. Prior to enactment of Section 16(3) of the Act, the question whether child of a void or voidable marriage is entitled to self-acquired property or ancestral property of his parents was discussed in a catena of cases. The property rights of illegitimate children to their father's property were recognized in the cases of Sudras to some extent.

15. In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors., [AIR 1923 PC 8], the Privy Council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father's property, along with the legitimate children.

16. In P.M.A.M. Vellaiyappa Chetty & Ors. v. Natarajan & Anr., [AIR 1931 PC 294], it was held that the illegitimate son of a Sudra from a permanent concubine has the status of a son and a member of the family and share of inheritance given to him is not merely in lieu of maintenance, but as a recognition of his status as a son; that where the father had left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son was not entitled to demand a partition of the joint family property, but was entitled to maintenance out of that property. Sir Dinshaw Mulla, speaking for the Bench, observed that though such illegitimate son was a member of the family, yet he had limited rights compared to a son born in a wedlock, and he had no right by birth. During the lifetime of the father, he could take only such share as his father may give him, but after his death he could claim his father's self-acquired property along with the legitimate sons.

17. In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr., [1889-90 Indian Appeals 128], the facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son and a legitimate daughter and three widows. The legitimate son had died and the issue was whether the illegitimate son could succeed to the property of the Raja. The Privy Council held that the illegitimate son was entitled to succeed to the Raja by virtue of survivorship.

18. In Gur Narain Das & Anr. v. Gur Tahal Das & Ors., [AIR 1952 SC 225], a Bench comprising Justice Fazl Ali and Justice Bose agreed with the principle laid down in the case of Vellaiyappa Chetty (supra) and supplemented the same by stating certain well- settled principles to the effect that "firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime. But on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son." However, the Bench was referring to those cases where the illegitimate son was of a Sudra from a continuous concubine.

19. In the case of Singhai Ajit Kumar & Anr. v. Ujayar Singh & Ors., [AIR 1961 SC 1334], the main question was whether an illegitimate son of a Sudra vis-`-vis his self-acquired property, after having succeeded to half-share of his putative father's estate, would be entitled to succeed to the other half share got by the widow. The Bench referred to Chapter 1, Section 12 of the Yajnavalkya and the cases of Raja Jogendra Bhupati (supra) and Vellaiyappa Chetty (supra) and concluded that "once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father's entire self-acquired property in the absence of a son, widow, daughter or daughter's son and to share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow's death."

20. The amendment to Section 16 has been introduced and was brought about with the obvious purpose of removing the stigma of illegitimacy on children born in void or voidable marriage (hereinafter, "such children").

21. However, the issues relating to the extent of property rights conferred on such children under Section 16(3) of the amended Act were discussed in detail in the case of Jinia Keotin & Ors. v. Kumar Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was contended that by virtue of Section 16(3) of the Act, which entitled such children's rights to the property of their parents, such property rights included right to both self-acquired as well as ancestral property of the parent. This Court, repelling such contentions held that "in the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself." Thus, the submissions of the appellants were rejected.

22. In our humble opinion this Court in Jinia Keotin (supra) took a narrow view of Section 16(3) of the Act. The same issue was again raised in Neelamma & Ors. v. Sarojamma & Ors. [(2006) 9 SCC 612], wherein the court referred to the decision in Jinia Keotin (supra) and held that illegitimate children would only be entitled to a share of the self-acquired property of the parents and not to the joint Hindu family property.

23. Same position was again reiterated in a recent decision of this court in Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685], wherein this Court held that a child born in a void or voidable marriage was not entitled to claim inheritance in ancestral coparcenary property but was entitled to claim only share in self-acquired properties.

24. We cannot accept the aforesaid interpretation of Section 16(3) given in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) for the reasons discussed hereunder:

25. The legislature has used the word "property" in Section 16(3) and is silent on whether such property is meant to be ancestral or self-acquired. Section 16 contains an express mandate that such children are only entitled to the property of their parents, and not of any other relation.

26. On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.

27. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio- economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time.

28. The amendment to Section 16 of the Hindu Marriage Act was introduced by Act 60 of 76. This amendment virtually substituted the previous Section 16 of the Act with the present Section. From the relevant notes appended in the clause relating to this amendment, it appears that the same was done to remove difficulties in the interpretation of Section 16.

29. The constitutional validity of Section 16(3) of Hindu Marriage Act was challenged before this Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC 76], held that Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner which advances the object of the legislation. This Court also recognized that the said Act intends to bring about social reforms and further held that conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16 (See para 68).

30. In paragraph 75, page 101 of the report, the learned judges held that Section 16 was previously linked with Sections 11 and 12 in view of the unamended language of Section 16. But after amendment, Section 16(1) stands de-linked from Section 11 and Section 16(1) which confers legitimacy on children born from void marriages operates with full vigour even though provisions of Section 11 nullify those marriages. Such legitimacy has been conferred on the children whether they were/are born in void or voidable marriage before or after the date of amendment.

31. In paragraph 82 at page 103 of the report, the learned Judges made the following observations: "In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents."

32. It has been held in Parayankandiyal (supra) that Hindu Marriage Act is a beneficent legislation and intends to bring about social reforms. Therefore, the interpretation given to Section 16(3) by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) needs to be reconsidered.

33. With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate `ipso-jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.

34. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.

35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.

36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha Matha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pe- existing common law view discussed above. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the Statute and the principles voiced under Part IV of the Constitution, namely, the Directive Principles of State Policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today State would include the higher judiciary in this country. Considering Article 37 in the context of the duty of judiciary, Justice Mathew in Kesavananda Bharati Sripadagalvaru v. State of Kerala and another [(1973) 4 SCC 225] held:

"......I can see no incongruity in holding, when Article 37 says in its latter part "it shall be the duty of the State to apply these principles in making laws", that judicial process is `State action' and that the judiciary is bound to apply the Directive Principles in making its judgment."

38. Going by this principle, we are of the opinion that Article 39 (f) must be kept in mind by the Court while interpreting the provision of Section 16(3) of Hindu Marriage Act. Article 39(f) of the Constitution runs as follows:

"39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing-

(a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) xxx

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."

39. Apart from Article 39(f), Article 300A also comes into play while interpreting the concept of property rights. Article 300A is as follows: "300A. Persons not to be deprived of property save by authority of law: No person shall be deprived of his property save by authority of law."

40. Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.

41. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.

42. For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) on Section 16(3) of the Act.

43. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench.
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