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


It has been settled by the Supreme Court that with the legislative changes, the principle 'death is the rule and life an exception', where it was so provided under the Code of Criminal Procedure, has shifted to 'life is the rule and death an exception'. It is only when exceptional penalty of death is sought to be imposed by the court that the Court is expected to record special reasons.

In the instant case, the accused treated the victims with utmost disregard, both physically and mentally. Rape of a pregnant lady by the accused, a young man aged 23 years, was totally inhuman and unwarranted. The victim was in her fifth month of pregnancy. At about 2:00 to 2:15 pm, the accused came to her flat. The door was opened by her mother-in-law, the deceased. The young boy said that he was a mechanic and was sent by sahib to repair the car. When the pregnant lady tried to contact her husband, the young boy snatched away the mobile from her and then he started assaulting both, the pregnant lady and her mother-in-law. The old lady fell down and the accused assaulted her a number of times, inflicting blows on the hands of the deceased by a sickle like weapon and demanded ornaments on the person of the deceased, mother-in-law. He also snatched the Mangalsutra from the pregnant lady and her gold chain but did not stop the assault. When the old lady made some movement on the floor, he gave another fatal blow on her neck which ultimately resulted in her death. The pregnant lady threw the purse containing gold ornaments and offered him to search the entire house and requested him to spare them but the accused became more aggressive and asked her to remover her clothes and committed rape on her under the threat of further assault. Even thereafter, he kept inflicting blows on her and then fled from the flat and bolted the room from outside.

The Supreme Court commuted his death sentence as awarded by the courts below, to that of life imprisonment, applying the doctrine of rehabilitation and doctrine of prudence. As the accused smelled of alcohol, the Supreme Court held that he may not exactly be aware of the consequences of his acts. According to the Apex Court, if the accused had intended to kill deceased and the victim lady, it was not expected of him to inflict 21 and 19 injuries on their bodies respectively. His conduct in inflicting large number of injuries and even ampulating the fingers of the deceased, the old lady, clearly reflected the conduct of an abnormal person.

Sandesh @ Sainath-Kailash Abhang v. State of Maharashtra , 2012 (12) SCALE 407; Decided on 13-12-2012 (SC) [Swatanter Kumar and Madan B. Lokur, JJ.]


Under the provisions of the High Court Judges (Salaries and Conditions of Service) Act, 1954, every retired Judge is entitled for himself and his family, to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class I and his family, are entitled under any rules and orders of the Central Government for the time being in force. The power is vested in the Government of the State to extend facilities for medical treatment to a retired Judge of the High Court for that State and his family different from the facilities provided to a retired officer of the Central Civil Services. On the question whether the High Court has jurisdiction to direct the State Government to frame any particular rule regarding medical facilities of the Retired Judges, there is difference of opinion between two Judges of the Supreme Court. According to Hon'ble Justice A. K. Patnaik, what exactly should be the provisions for medical facilities can only be decided by the State Government. However, as held by Hon'ble Justice Swatanter Kumar, there shall be complete uniformity in the 'grant of medical benefits' to the former Judges of the various High Courts. It may not only be desirable but necessary for the Centre and the State Governments to amend and alter the existing rules.

Since there has been a difference of opinion, the matter has been referred to the larger Bench.

Secretary, Ministry of Health and Family Welfare v. S.C. Malte , C.A. Nos. 9020-9021 of 2012; Decided on 13-12-2012 (SC) [A. K. Patnaik and Swatanter Kumar, JJ.]


The question of law that is raised is as to whether having regard to the provisions of the Motor Vehicles Act, 1988, the insurance company is liable to pay compensation for the bodily injury caused to the claimant who was travelling in a goods vehicle as a spare driver though he was employed as a driver in another vehicle owned by the owner of the vehicle under the policy of insurance. In the instant case, the insured (owner of the vehicle) got insurance cover in respect of the subject goods vehicle for driver and cleaner only and not for any other employee. There was no insurance cover for the spare driver in the policy.

As held, as a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he was a spare driver. Merely because he was travelling in a cabin would not make his case different from any other gratuitous passenger. The High Court was wrong in holding that the insurance company shall be liable to indemnify the owner of the vehicle and pay the compensation to the claimant as directed in the award by the Tribunal.

Manager, National Insurance Co. Ltd . v. Saju P. Paul , C.A. No. 5 of 2013; Decided on 3-1-2013 (SC) [R.M. Lodha and Anil R. Dave, JJ.]

HUMAN RIGHTS: Fake Encounters in State of Manipur

Two writ petitions have been filed in the Supreme Court raising some disquieting issues pertaining to the State of Manipur, stating that, over the years, a large number of people, Indian citizens, have been killed by the Manipur Police and other security forces while they were in custody or in stage-managed encounters or in ways broadly terms as 'extra-judicial executions'. It was stated that for a very long time, the State of Manipur is declared as 'disturbed area' and is put under the Armed Forces (Special Powers) Act, 1958, subverting the civil rights of the citizens of the State and making it possible for the security forces to kill innocent persons with impunity. In the first writ petition, it was stated that during the period May, 1979 to May, 2012, 1528 people were killed in Manipur in extra-judicial execution.

The writ petitioners made the prayer to constitute a Special Investigation Team comprising police officers from outside Manipur to investigate the cases of unlawful killings and to prosecute the alleged offenders. However, the Supreme Court has constituted a three member high powered commission to make a thorough enquiry and record a finding regarding the past antecedents of the victims and the circumstances in which they were killed. The commission will also address the larger question of the role of the State Police and the security forces in Manipur.

Extra Judicial Execution Victim Families Association & Anr. v. Union of India , W.P. (Crl) No. 129 of 2012 with WP (C) No. 445 of 2012; Decided on 4-1-2012 (SC) [Aftab Alam and Ranjana Prakash Desai, JJ.]

RIGHT TO INFORMATION: Names of Interviewers

Right to information is a basic and celebrated fundamental/basic right but it is not uncontrolled. It has its limitations. In terms of section 8(1)(g) of the Right to Information Act, 2005, the public authority is not obliged to furnish any such information the disclosure of which would endanger the life or physical safety of any person or identify the source of information.

As held by the Supreme Court, declaration of collective marks to the candidates is one thing but direction to furnish the names and addresses of the interviewers would certainly be opposed to the very spirit of section 8(1)(g) of the Act. The disclosure of names and addresses of the members of the Interview Board would ex-facie endanger their lives or physical safety. The possibility of a failed candidate attempting to take revenge from such persons cannot be ruled out. Transparency in such cases is relatable to the process where selection is based on collective wisdom and collective marking. Marks are required to be disclosed but disclosure of individual names would hardly hold relevancy either to the concept of transparency or for proper exercise of the right to information within the limitation of the Act.

Bihar Public Service Commission v. Saiyed Hussain Abbas Rizvi , C.A. No. 9052 of 2012; Decided on 13-12-2012 (SC) [Swatanter Kumar and Sudhansu Jyoti Mukhopadhyaya, JJ.]

LL.M. (Medalist)

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