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


The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of a given case. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on the date of the order of the final court.

In the instant case, the owners of the suit property after inducting plaintiff as a tenant in respect of half portion of the suit property executed an agreement dated 22-12-1970 to sell the suit property in favour of the plaintiff. As the plaintiff purchaser had not received any intimation from the owner of the property in the matter of execution of the sale deed, the plaintiff filed a suit for specific performance on 3-11-1997 i.e. much beyond the stipulated period of three years from the accrual of the cause of action. However, the Supreme Court held that the ends of justice would require this court to decree the suit of the plaintiffs for specific performance of the agreement but it was stipulated that the sale deed that will now have to be executed by the owner in favour of the plaintiffs will be for the market price of the suit property as on the date of the present order.

Satya Jain (D) Through LRs. v. Anis Ahmed Rushdie (D) Thr. LRs, C.A. No. 2 of 2012;
Decided on 3-12-2012 (SC) [ P. Sathasivam and Ranjan Gogoi, JJ.]


Aggravating and Mitigating Circumstances Approach

As laid down by the Supreme Court while choosing between the two alternative sentences provided in section 302 of the Indian Penal Code (sentence of death and sentence of life imprisonment), the Court is principally concerned with the aggravating or mitigating circumstances connected with the 'particular crime under inquiry'. While accepting this, the Constitution Bench in Bachan Singh case laid down that not only the relevant circumstances of the crime should be factored in, but due consideration must also be given to the circumstances of the criminal. The conclusion of the Constitution Bench was that the sentence of death ought to be given only in the rarest of rare cases and it should be given only when the option of awarding the sentence of life imprisonment is 'unquestionably foreclosed'.

As observed, there is a lack of evenness in the sentencing process. The rarest of rare principle has not been followed uniformly or consistently. Recently in Sangeet v. State of Haryana , 2012 (11) SCALE 140, the Supreme Court has held, 'not only does the aggravating and mitigating circumstances approach need a fresh look but the necessity of adopting this approach also needs a fresh look in light of the conclusions in Bachan Singh case.' As held, sentencing has now really become judge-centric. There is little or no uniformity in the application of this approach.

Sandesh @ Sainath Kailash Abhang v. State of Maharashtra , Crl. App. No. 1973 of 2011; Decided on 13-12-2012 (SC); Sangeet v. State of Haryana , Crl. A. Nos. 490-491 of 2011; Decided on 20-11-2012 (SC)



In the present case, the murder was committed inside a house on the intervening night of 8 th and 9 th October, 1983 when all other family members of deceased were present there. A charge-sheet was filed sometime in 1987 and the trial court delivered its judgment on 29 th June, 2001. According to the Apex Court, these time gaps are telling.

The investigation took almost four years to complete despite eyewitnesses who knew the accused. The trial concluded after another 14 years or about 18 years after the murder. As held, this is a rather unhappy state of affairs. The Supreme Court has observed, it is high time that the State and the Courts gear up their administrative machinery so that at least a trial for a heinous offence gets concluded within a reasonable period.

Haradhan Das v. State of West Bengal, Crl. App. No. 148 of 2007; Decided on 13-12-2012 (SC) [Swatanter Kumar and Madan B. Lokur, JJ.]


CRIMINAL TRIAL: Quashing of Prosecution

The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences. Inherent power is of wide amplitude with no statutory limitation. The High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak.

In the instant case the petitioner 1 was a fashion designer and petitioners 2 and 3 were the daughters of petitioner 1. The complainant, son of a retired Judge of the High Court was residing in the neigbourhood of petitioner 1. The petitioners and the complainant were educated and respectable citizens but certain unfortunate incidents relating to pet dogs of the petitioners had dragged them to the court. These incidents took ugly turn which resulted in the lodging of FIR under sections 147,148,149, 323, 307, 452 and 506 IPC by the complainant. Since the offences involved in this case are of personal nature and are not offences against the society, the Supreme Court enquired with counsels appearing for the parties whether there was any possibility of a settlement. Due to efforts made by the counsels, parties had entered into a compromise and filed an application praying for quashing of the said FIR. The Supreme Court held that this was a case where continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences nor are they against the society. The Court held that they are offences of a personal nature and burying them would bring about peace and amity between the two sides.

Dimpey Gujral v. Union Territory Thr. Administrator, U.T. Chandigarh , T.P. (Crl.) No. 115 of 2012; Decided on 6-12-2012 (SC) [Aftab Alam and Ranjana Prakash Desai, JJ.]



The Supreme Court has taken suo motu cognizance of a recent firing incident, widely reported in the Press, resulting in the death of two persons, allegedly on account of use of firearms by some private security personnel considering it as a matter of grave concern. As observed, it raises serious issues regarding the role of security agencies, especially the private ones. Some of the questions raised which, according to the Apex Court are of great public importance and need to be urgently addressed are:

1. What is the legal regulatory framework under which the private security agencies operate?

2. What are the parameters/norms that are considered for issue of firearm/ weapon licences to private security personnel?

3. What are the guidelines, if any, governing the use of such firearms/ weapons, by private security personnel; if not, whether it is necessary to frame definite parameters on the subject?

4. What are the rights and duties of private security agencies under the law, particularly, vis-à-vis the criminal law of the land?

The Supreme Court has issued notice to the Ministry of Home Affairs, Union of India with a direction to file an affidavit explaining its stand on these questions raised on licensing and working of the private security agencies.

RE: Recent Firing Incident ; 2012 (11) SCALE; Decided on 21-11-2012 (SC) [D.K. Jain and Jagdish Singh Khehar, JJ.]


DISHONOUR OF CHEQUE: Complaint Without Signatures

The complaint under section 138 of the Negotiable Instruments Act, filed without signature is maintainable when such complaint is verified by the complainant and the process is issued by the Magistrate after due verification. The prosecution of such complaint is maintainable. Mere presentation of the complaint is only the first step and no action can be taken unless the process of verification is complete. It is also clear that a person could be called upon to answer a charge of false complaint/perjury only on such verification statement and not mere on the presentation of the complaint as the same is not on oath and, therefore, need to obtain the signature of the person.

Indra Kumar Patodia v. Reliance Industries Ltd., Crl. A. No. 1837 of 2012; Decided on 22-11-2012 (SC) [P. Sathasivam and Ranjan Gogoi, JJ.]

LL.M. (Medalist)

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