MOTOR ACCIDENT CLAIMS: Oath of Claimant
It is a matter of common knowledge that in motor road accident's claim cases, it is very difficult to get witnesses. The eye witnesses are also not readily available. Even if available, they are not easily ready and willing to come and depose in court of law for many reasons. Thus, courts have to go by the oath of the claimant only.
In the instant case, the claimant did suffer injuries which he had sustained in a motor road accident but only on account of technicalities, his claim petition had been defeated by the claims Tribunal. A finding was recorded against the claimant that he had not been able to prove that he had been travelling in the bus which had actually met with the accident. The accident was between two buses. The Supreme Court held the claimant deserved to be awarded just, proper and reasonable compensation, based on oath of the claimant.
Gurdeep Singh v. Bhim Singh , C.A. No. 2618 of 2012; Decided on 29-2-2012 (SC) [Deepak Verma and K.S. Radhakrishnan, JJ.]
DISHONOUR OF CHEQUE: Pre-mature Complaint
A conjoint reading of sections 138 and 142 of the Negotiable Instruments Act, makes it clear that a complaint under section 138 can be filed only after the cause of action to do so accrues to the complainant in terms of clause (c) of the proviso to section 138 which happens only when the drawer of the cheque in question fails to make the payment of the cheque amount to the payee or the holder of the cheque within 15 days of the receipt of the notice required to be sent in terms of clause (b) to the proviso to section 138 of the Act. A complaint filed in anticipation of the accrual of the cause of action under clause (c) of the proviso to section 138 would be a premature complaint.
In the instant case the complaint filed was a premature complaint but the Magistrate took cognizance of the offence on the date when the stipulated period of 15 days had expired but no payment towards the cheque amount was made to the complainant even upto the date the cognizance was taken. The commission of the offence was thus complete on the date cognizance was taken, but the complaint on the basis whereof the cognizance was taken remained premature. The question whether cognizance of offence could be taken on the basis of a premature complaint, has been referred to a larger Bench of the Supreme Court.
Yogendra Pratap Singh v. Savitri , Crl. A. No. 605 of 2012; Decided on 3-4-2012 (SC)
GANG RAPE OF MINOR
Assuming that the prosecutrix was, even earlier to the incident, used to sexual intercourse, the same could be no reason to disbelieve her version that she was raped by the accused persons in the circumstances narrated by her.
In the instant case, the victim girl specifically accused the appellant and his companions of repeatedly raping her throughout the night. She also narrated how she had escaped in the morning and disclosed the incident to her parents. She was slapped by the accused and had also got injured in her knees in the course of the sexual assault on her. Even the medical evidence on record did not shake the truthfulness of the prosecution case. It is true that one doctor had reported that the prosecutrix admitted only one finger, but she had gone further to report that she had found redness of the labia majora of the prosecutrix. As against the version given by this doctor the deposition of another doctor of the Medical Board certified that the vagina admitted two fingers. The supplementary report stated that no definite opinion regarding rape could be given as the girl was used to sexual intercourse. It was not, therefore, as if that the medical evidence completely negatived the theory of rape set up by the prosecution. The Supreme Court sustained conviction of the accused.
Munnaour @ Jhannan v. State of UP , Crl. A. No. 1045 of 2005; Decided on 28-2-2012 (SC) [T.S. Thakur and Gyan Sudha Misra, JJ.]
MEDICAL NEGLIGENCE: Death of Housewife
The mere fact that the deceased was a home maker was not sufficient to deny adequate compensation to the claimants in lieu of the services rendered by her. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money.
In the instant case, wife of appellant was admitted in a Nursing Home for removal of fibroid from her uterus as well as for total Hysterectomy. She was discharged from the Nursing Home but on subsequent visit to the Nursing Home, ultrasound was done on her abdomen and it was discovered that two Mops/Gauges were left in her abdominal cavity. Doctor performed a colostomy in her intestine and she died after one month due to scepticemia inside her abdomen. On a complaint filed by her husband, concerned doctors were directed to pay compensation of ` 12,34,414. On appeal, the National Commission reduced the amount of compensation to ` 8,00,000 while holding that the deceased was not generating any income by practicing any occupation for gain and she was merely a home maker. However, the Supreme Court restored the amount of compensation of ` 12,34,414 as awarded by the State Commission.
Jaswinder Singh v. Santokh Nursing Home , 2012 (4) SCALE 70; Decided on 16-1-2012 (SC)
BIGAMY: Cognizance on Police Report
If a complaint contains allegations about commission of offence under section 498A of Indian Penal Code which is a cognizable offence, apart from allegations about the commission of offence under section 494, IPC, the court can take cognizance thereof even on a police report. No fetters can be put on the police preventing them from investigating the complaint which alleges offence under section 498A of the Indian Penal Code.
Section 198 of the Code of Criminal Procedure, 1973, pertains to prosecution for offences against marriage and it brings in the concept of complaint by an aggrieved person and section 198(1)(c) explains how far the scope of term 'aggrieved person' can be extended in the context of offence under section 494, IPC. Section 190 of the Code permits a court to take cognizance of offence punishable under section 498A, Indian Penal Code, upon a police report of facts which constitute offence.
Ushaben v. Kishorbhai Chunilal , Crl. A. No. 562 of 2012; Decided on 23-3-2012 (SC) [Aftab Alam and Ranjana Prakash Desai, JJ.]
HIGH COURTS: Inherent Powers of Quashing Investigation
It is true that the inherent powers vested in the High Court under section 482 of the Code of Criminal Procedure are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety to not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those incharge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.
In the instant case of irregularities in receipt of excess quota, recycling of rice and distress sale of paddy by a proprietary concern, the S.P., Vigilance Cell, had merely approved the opening of an enquiry and converted it into a Cell File, the preliminary inquiry was yet to commence and an FIR was yet to be lodged, the High Court stayed the preliminary enquiry by an interim order and then quashed the same. The Supreme Court held that commencement and completion of an investigation was necessary to test the veracity of the alleged commission of an offence and that any kind of hindrance or obstruction of the process of law from taking its normal course, without any supervening circumstances, in a casual manner, merely on the whims and fancy of the court tantmounts to miscarriage of justice.
State of Orissa v. Ujjal Kumar Burdhan , Crl. A. No. 546 of 2012; Decided on 19-3-2012 (SC) [D.K. Jain and Anil R. Dave, JJ.]