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--------------- Print Magazine --------------
  May 2016
  April 2016

UNDERTRIAL PRISONERS: Transfer to Another Prison

The prison where the undertrial is detained is a prison identified by the competent court either in terms of section 167 or section 309 of the Code of Criminal Procedure. It is axiomatic that transfer of the prisoner from any such place of detention would be permissible only with the permission of the court under whose warrant the undertrial has been remanded to custody. The power exercisable by the court while permitting or refusing transfer is 'judicial' and not 'ministerial'.

The transfer of an undertrial to a distant prison may adversely affect his right to defend himself and also isolate him from the society of his friends and relations. Any order that the court may make on a request for transfer of a prisoner is bound to affect him prejudicially, therefore, it is obligatory for the court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the objections which the prisoner may have to offer.

State of Maharashtra v. Saeed Sohail Sheikh, Crl. A. Nos. 1735-1739 of 2012; Decided on 2-11-2012 (SC)

DOWRY HARASSMENT: Over Implication of Entire Family

Mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

In the instant case, there were no ingredients making out a case against the unmarried sister of the accused husband and his elder brother. When the complainant came to her in-law's house after her wedding, she had alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appeared to be no specific allegation against the sister and brother of the complainant's husband as to how they could be implicated into the mutual bickering between the complainant and her husband including his parents. When the complainant and her husband were divorced as the complainant wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued inspite of absence of specific allegations at least against the brother and sister of the complainant's husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court.

Geeta Mehrotra v. State of U.P ., Crl. A. No. 1674 of 2012; Decided on 17-10-2012 (SC) [T.S. Thakur and Gyan Sudha Misra, JJ.]

BAIL: Cancellation of

Cancellation of bail is a serious matter. Bail once granted can be cancelled only in the circumstances and for the reasons which have been clearly stated by the Supreme Court in a catena of judgments. Section 439 of the Code of Criminal Procedure confers very wide powers on the High Court and the Court of Sessions regarding bail. The gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court.

While cancelling bail under section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail.

Kanwar Singh Meena v. State of Rajasthan , Crl. A. No. 1662 of 2012; Decided on 16-10-2012 (SC) [Aftab Alam and Ranjana Prakash Desai, JJ.]

MOTOR ACCIDENT CLAIMS: Permanent Disability

As observed by the Supreme Court, despite many a pronouncement in the field, it still remains a challenging situation warranting sensitive as well as dispassionate exercise how to determine the incalculable sum in calculable terms of money in cases of personal injuries. In such assessment neither sentiments nor emotions have any role. As held, there cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. It becomes a challenge for a count of law to determine 'just compensation' which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance. An adjudicating authority, while determining quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. However, neither the tribunal nor a court can take a flight in fancy and award an exorbitant sum, for the concept of conventional sum, fall of money value and reasonableness are to be kept in view.

K. Suresh v. New India Assurance Co. Ltd ., C. A. No. 7603 of 2012; Decided on 19-10-2012 (SC)

CORRUPTION CASES: Suspension of Conviction

Corruption is not only a punishable offence but also undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes. The High Court should not have passed the order of suspension of sentence in a case involving corruption. It is certainly not the case where damage if done, could not be undone as the employee if ultimately succeeds, could claim all consequential benefits.

In the instant case, the respondent, the then Superintendent of Central Excise was convicted under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, for possessing assets disproportionate to his disclosed source of income which was to the extent of ` 7,64,368. Subsequent to his conviction by the trial court, the respondent was put under suspension and was served a show cause notice to explain that in view of his conviction, why he should not be dismissed from service. The respondent filed an application for suspension of conviction. The High Court has been held, not justified in suspending the conviction of the respondent.

State of Maharashtra v. Balakrishna Dattatrya Kumbhar , 2012 (10) SCALE 265; Decided on 15-10-2012 (SC) [Dr. B. S. Chauhan and Fakkir Mohamed Ibrahim Kalifulla, JJ.]


As observed, a large number of review petitions are being filed by the parties even after dismissal of the Special Leave Petitions by the Supreme Court, either by non-speaking orders or on merits, and depending upon the outcome of the review petitions again SLPs are being filed before the Supreme Court. Considerable arguments are being raised on the maintainability of review petitions after the disposal of the special leave petition without granting leave but with or without assigning reasons on which also conflicting views are being expressed by the two-Judge Benches of the Supreme Court. In order to resolve these conflicts and for proper guidance to the High Courts, the Supreme Court has held that it would be appropriate that this matter be referred to a larger Bench for an authoritative pronouncement.

Khoday Distilleries Ltd. v. Mahadeshwara S.S.K. Ltd ., SLP (C) No. 490 of 2012; Decided on 19-10-2012 (SC) [K.S. Radhakrishnan and Dipak Mishra, JJ.]

CRIMINAL APPEAL: Suspension of Conviction

The Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such that they warrant such a course of action by it. The Court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done.

State of Maharshtra Thr. CBI, A.C.B. v. Balakrishna Dattatraya , Crl. A. No. 1648 of 2012; Decided on 15-10-2012 (SC) [Dr. B. S. Chauhan and Fakkir Mohamed Ibrahim Kalifulla, JJ.]

LL.M. (Medalist)

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