CPC - Order IX Rule 13

 

Important Points

1. Defendant refused to accept summons issued in the suit.
2. After the suit was decreed ex-parte, execution proceedings were initiated.
3. Sub-Rule (5) of Order V Rule 9 of CPC - states inter alia that if defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.
4. Section 27 of General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.

Case Law

1. Alavi Haji Vs palapetty Muhammed AIR 2007 SC (Supp) 1705
1. if notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in-station" due service has to be presumed.
2. Jagdish Singh Vs natthu Singh 
3. state of MP Vs Hiralal
4. V Raja Kumari vs P.Subbaram Naidu

Upper Age limit - Appointment to Public Post

 

Important Points

1. SC has held that provision relating to upper age limit should be construed as mandatory and not directory.
1. Making them directory would mean that the authority is given unbridled power in giving relaxations to person of their choice.
2. That is impermissible as per the constitutional scheme, as the appointment to the public post must be accordance with A14 and A16
3. there should not be scope of arbitrary selection by unfettered discretion being vested in the authorities.
2. Eligibility criteria should be uniform and there cannot be scope of arbitrary selection by unfettered discretion vested with authorities.

Article 142 of Constitution of India

 

Statue

Important Points

1. Plenary Jurisdiction of SC to impart complete justice under A142 
2. A142 cannot ipso facto be limited or restricted by ordinary statutory provisions
3. In absence of an express provision akin to section 482 CrPc conferring powers on SC to abrogate and set aside criminal proceedings, the jurisdiction exercisable u/s A142 of constitution embraces this court with Scorpius power to quash criminal proceedings also, so as to secure complete justice.
4. Overarching objective of sentencing in the criminal justice system
1. sublime philosophy of maintenance of peace of the collective and that the rationale of placing individual behind bars is aimed at his reformation.
5. Powers u/s 142 which have wide amplitude ought to be exercised carefully in context of quashing criminal proceedings
1. Nature and effect of the offence on the conscious of the society
2. seriousness of the injury, if any
3. Voluntary nature of compromise b/w the accused and the victim
4. Conduct of the accused persons, prior to and after the occurrence of the puported offence and/or other relevant consideration.

Party In Person

 

Statue

1. Advocates Act
1. Section 30 - Right of advocate to practise  - Subject to the provisions of this Act, every advocate whose name is entered in the 3[ State roll ] shall. be entitled as right to practise throughout the territories to which the act extends
1. in all courts including the Supreme Court
2. before any tribunal or person legally authorised to take evidence
3. before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
2. Section 33 - Advocates alone entitled to practise, NO person can be said to be entitled to practise in any court, unless he is enrolled as an advocate under this act.
3. Section 32 - Power of court to permit appearances in particular cases, discretionary power to permit, or not permit such a person who is NOT enrolled as an Advocate to appear before it.
2. Uttarakhand Party in Person Rules 2020
1. Bestows discretionary power on the court to permit or not to permit a party to appear in person and to argue his or her case.

Important Points

1. Discretion vested by Advocates Act on court to permit or not to permit a party to appear in person and to argue the case.
2. It is NOT the RIGHT of a person other than an enrolled advocate to appear and argue before the court. 

Arguments for Party In Person

1. No faith in any of the counsel of HC and would not like any counsel to be appointed by Court 
2. his advocates are draged into needless controversies by those in power
3. Knowledge of law, his erudite arguments his critical analysis of the law and facts have been lauded by a few legal fora.

Case Laws

1. Goa Antibiotics and Pharmaceuticals Ltd Vs R.K Chawala & 9 (2011) 15 SCC 449
1. It is not the right of a person, other than an enrolled advocate, to appear and argue before the court, but it is a discretion vested by the Act on the Court to permit or not to permit a party to appear in person and to argue the case.

Attempt to Murder - 307 IPC

 

Statue

1. 307 IPC - Attempt to murder
2. 34 IPC - common Intention

Important points

1. Attempt to murder 307 IPC will fall under category of heinous offence, and has to be treated as a crime against the society and not against the individual alone
2. Proceeding u/s 307 IPC cannot be quashed only on ground that the parties have resolved the entire disputes amongst themselves.
3. Quash
1. HC u/s 482 CrPC could be exercised keeping in mind the injuries sustained
2. Injury was inflicted on a vital part of the body, nature of weapons used.
4. Criminal Justice system has a larger objective to achieve, that is safety and protection of people at large and it would be a lesson not only to offender but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society.
5. The guiding factors is as to whether the ends of justice would justify such exercise of power, both 
1. the ultimate consequences may be a acquittal or 
2. dismissal of indictment

Arguments used for Quash - 482 CrPC

1. Attacked only by kitchen knife
2. Entered into compromise 
3. money already paid
4. Distantly related
5. To ensure both sides lived peacefully 

Case Law

1. State of Rajasthan vs Shambhu Kewat (2014) 4 SCC 149
1. 307 IPC is serious offence and ordinarily should not be quashed by HC while exercising its power under section 482 CrPC on the ground that parties have settled their dispute
2. Narinder Singh Vs State of Punjab (2014) 6 SCC 466
1. SC quashed 307 IPC after noticing judgment in Kewat 
2. matter was referred to larger bench
3. court may be justified on its own facts, at the same time this court ows an explanation as why two different approaches are adopted in various cases
3. State of MP Vs Laxmi Narayan (2019) 5 SCC 688  - issue was resolved
1. 307 IPC - heinous offence
2. Treated as crime against society and not against individual alone 

Discharge Burden u/s 106 IEA

 

Statue

1. Section 101 of IEA
1. Whoever desires any court to give a judgment as to a liability dependent on the existence of facts, he MUST prove those facts exist.
2. 106 Indian Evidence Act
1. Burden of proving fact especially within knowledge - when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
3. 
   

Important Points

1. Failure to discharge burden under section 106 of IEA 1872, is NOT RELEVANT in a case governed by circumstantial evidence, IF prosecution is unable to establish a chain of circumstances.
2. Circumstantial Evidence - the prosecution has to establish chain of circumstances
1. When chain is not complete, the falsity of the defense is NO GOUND to convict the accused.
3. Application of 106 IEA
1. Applies to those cases where the prosecution has succeeded in establishing the facts 
2. FROM which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused.
3. When accused FAILS to offer proper explanation about the existence of said other facts, 
4. Court can always draw an appropriate inference.
4. Section 106 constitutes an EXCEPTION to section 101.
5. Section 106 is NOT INTENDED to relieve prosecution relieve it of that duty of burden of Proof.
1. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate dispoportionately difficult for the prosecution to establish facts which are especially within knowledge of the accused and which he could prove without difficulty or inconvenience. 

Case Laws

1. Sharad Birdhichand Sarda Vs State of Maharastra (1984) 4 SCC 116
1. Para 153 - Panchsheel - 5 Golden Principles
1. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established
1. The circumstances from which the conclusion of the guilt is to be drawn should be FULLY 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
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 accused.
2. Shambu Nath Mehra Vs The State of Ajmer 
1. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. 
1. Illustrations (a)
1. A desires a court to give Judgment that B shall be punished for a crime which A says B has committed
2. A must prove that B has committed the crime

Life Imprisonment

 

Summary

1. Imprisonment for life is equivalent to Rigorous Imprisonment for life

Case Law 

1. Niab Singh Vs State of Punjab, (1983) 2 SCC 454
1. Imprisonment for life is Rigorous Imprisonment for life
2. In view of the authoritative pronouncements made by Privay Council and this Court in Kishori Lal vs Emperor, AIR 1945 PC 64: 72 IA 1, Gopal Vinayak Godse vs State of Maharastra, AIR 1961 SC 600
2. Gopal Vinayak Godse vs State of Maharastra, AIR 1961 SC 600
3. Kishori Las Vs Emperor, 1961 3 SCR 440

Questions

1. what is Rigorous Imprisonment?