S. 313 CrPC - Purpose and Power of Court to Dispense with Compliance to it

Essentially purpose of S. 313 CrPC is codified principle of natural justice, an opportunity to give his explanation regarding the incriminating evidence against him and an opportunity to plead his defence if he so desires. It is not evidence under S. 3 of Evidence Act since it is not taken on oath. It is a statutory obligation on the court to put before the accused material evidence against him produced by the prosecution. Accused has a duty to explain to the court under S. 313 CrPC in respect of the incriminating evidence against him. Existence of evidence or circumstance in the prosecution evidence implicating the accused with the commission of the crime he is charged with is pre-requisite for invoking S. 313 CrPC. Statement under this section is not substantive piece of evidence; it merely aids the court to accept or reject the prosecution evidence.

Raj Kumar Singh @ Raju @ Batya vs State Of Rajasthan 

http://indiankanoon.org/doc/102217399/

25. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.

 In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100, Supreme Court said “…if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.”

 In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582, Supreme Court said “The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.”

 In Dehal Singh v. State of H.P., AIR 2010 SC 3594, Supreme Court said “Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The appellants have not chosen to examine any other witness to ?support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter- alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross- examined with reference to those statements. However, when an accused appears as a witness in defence to disprove the charge, his version can be tested by his cross-examination.”

 In State of M.P. v. Ramesh, (2011) 4 SCC 786, Supreme Court said “The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined. his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.”

In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114, Supreme Court said “It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events….”

 In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759, Supreme Court said “The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.”

 In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357, Supreme Court said “It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.”

 In Munish Mubar v. State of Haryana, AIR 2013 SC 912,Supreme Court held, that the accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. as regards any incriminating material that has been produced against him. Such a view was taken in light of the fact that there existed evidence to show that the accused had parked his car at the Delhi Airport, and that the same had remained there for several hours on the date of commission of the crime in question. Thus, in light of the fact that such a fact had been established, and that such circumstances also simultaneously existed, the accused was expected to explain the reason for which he had gone to the airport, and why the car had remained parked there for several hours.

In Ramnaresh (Supra), Supreme Court took the view that if an accused is given the freedom to remain silent during the investigation, as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial, even at the time when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused, as may be permissible in accordance with law. While such an observation has been made, this part of the judgment must be read alongwith the subsequent observation of the court stating that if he keeps silent or furnishes an explanation, in both cases, the same can be used against him for rendering a conviction, in so far as it supports the case of the prosecution.

In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, Supreme Court held, that it is equally true that a statement under Section 313 Cr.P.C., simpliciter cannot normally be made the basis for convicting the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, that is placed is to some extent, reduced.

Vested Interest in Testator's Properties

Lakshmana Nadar And Others vs R. Ramier 1953 AIR 304, 1953 SCR 848

http://indiankanoon.org/doc/1622258/

Will conferred limited ownership on widow of testator with absolute ownership on the daughter after the death of the widow of testator - whether the widow acquired absolute estate on death of her daughter and her grandchildren?  

whether- the widow took under the will an absolute estate or an estate like the Hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest.

It is now settled that a Hindu can confer by means of a will on his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair. 

The widow cannot be held to have been given a full Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication.

Powers that a Hindu widow enjoys under Hindu law: Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations.

Held : the widow had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death.

Effect of Heirs and Children Differentiated in Will of Testator

The expression "heir" would mean a legal heir. What is necessary for true, proper and effective construction of the Will in question is to give effect to the intention of the propounder of the Will.

M/s. Bay Berry Apartments Pvt. Ltd. & Anr vs Shobha & Ors
http://indiankanoon.org/doc/728989/

principal question before the court - what would be the meaning of expression 'heirs'

Held : "In relation to the male descendancy the executor had used the expression 'heirs' in regard to the succession of property after their death, which were bequeathed in their favour; the expression 'children' has been used in relation to the inheritance of the property bequeathed in favour of daughters and daughters in law."

The court had to give appropriate meanings to the expressions 'children', 'issue' and 'heirs' which would ordinarily be not synonymous but sometimes they may carry the same meaning.  

The court referred to P. Ramanatha Aiyar's Advanced Law Lexicon at page 2111 :

"There is doubtless a technical difference in the meaning of the two words "heirs" and "children", and yet in common speech they are often used as synonymous. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

"When the general term "heirs" is used in a will, it will be construed to mean 'child' or 'children', if the context shows that such was the intent of the testator."

Where the words "children" and "heirs" are used in the same instrument in speaking of the same persons, the word "heirs" will be construed to mean "children"; such usage being treated as sufficient evidence of the intention to use the word "heirs" in the sense of "children."

Also held "Heirs may be lineal or collateral. When we say that the Will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married; the question as to who would be their heirs was uncertain. If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers."

In N. Krishnammal vs. R. Ekambaram & sons [(1979) 3 SCR 700 : (1979) 3 SCC 273], it was stated: "It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator ".

In Angurbala Mullick vs. Debabrata Mullick [(1951) 2 SCR 1125], it was opined that the expression 'heirs' cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/ or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu  Succession Act.

Coparcenary Property - Family Arrangement, Interest of Widow

Potti Lakshmi Perumallu vs Potti Krishnavenamma 1965 AIR 825, 1965 SCR (1) 26

http://indiankanoon.org/doc/694388/

Two issues set at rest in this case are :

1) Family Arrangement : "No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a court of law. But before the court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon."

2) interest to which a Hindu widow is entitled under s. 3(2) of the Hindu Women's Rights to Property Act, 1937 : Apex court referred to past decisions by the high courts and held "the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu widow's estate. This interest is in substitution of her right under the pre- existing Hindu law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to these decisions her interest is a fluctuating one and is liable to increase or decrease according as there were deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. 

..... Undoubtedly she does not become a coparcener, though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to be that of a Hindu widow. (Now, of course , it has been enlarged by s. 14 of the Hindu Succession Act, 1956). But a coparcener has no defined interest in the joint family property and the right which he has is to claim for partition. The quantum of his interest would be determinable with reference to the date on which such member unequivocally declares his intention to separate and thus put an end to the coparcenary. It cannot even be suggested that the event of the death of a coparcener is not tantamount to an unequivocal declaration by him to separate from the family. According to the theory underlying the Hindu law the widow of a deceased Hindu is his surviving half and, therefore, as long as she is alive he must be deemed to continue to exist in her person. This surviving half had under the Hindu law texts no right to claim a partition of the property of the family to which her husband belonged. But the Act of 1937 has conferred that right upon her.When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition. 

... the interest devolving upon the widow need not necessarily be either by survivorship or by inheritance but could also be in a third way i.e., by statute and where the interest is taken by her under a statute no further difficulty arises."

Effect of Hindu Succession Act on Female Granted Limited Ownership of Property by the Testator by Execution of Will

http://indiankanoon.org/doc/1622720/

Gumpha vs Jaibai 1994 SCC (2) 511, JT 1994 (1) 535

A will was executed in 1941; death of the testator was in 1958; he had two wives, he willed one-half share to each till their life and the only daughter, was to be ultimate beneficiary. One wife died in 1966 and she had executed a will in favour of her domestic servant.  trial court and First Appellate Court held that the life estate created under the will stood converted into absolute estate under Section 14(1) of the Act as it was in recognition of pre-existing right. The High Court did not agree with this and held that the widow could not get larger interest than that was intended by the testator.

Apex court was faced with the question "What is the dichotomy between two sub-sections of Section 14 which forms the bedrock of revolutionary changes brought out in Hindu Law of Succession in 1956."

After noticing the decisions in S.S. Munna Lal v. S.S. Raj Kumar, Kalawatibai v. Soiryabai, Bai Vajia v. Thakorbhai Chelabhai, G. Appaswami Chettiar v. R. Sarangapani Chettiar, In Kothi Satyanarayana v. Galla Sithayya, Eramma v. Verrupanna; Kuldip Singh v. Surain Singh and Dindayal v. Rajaram, Apex court held :

A female Hindu could acquire rights under Section 14(1) only if she was possessed of the property and that possession was by some legal authority. To put it differently a trespasser or a female Hindu who cannot establish any right in the property of which she was possessed could not acquire any right. 

It necessarily follows that the possession must be founded on some basis which may be acceptable in law and the right that she acquires under Section 14 depends on the nature of possession she enjoyed over the property. Consequently if a female Hindu acquires possession after the enforcement of the Succession Act and that possession was traceable to an instrument or a document described in sub- section (2) then she could not get higher right than what is stipulated in the document itself. 

The purpose and the legislative intention which surfaces from a combined reading of the two sub-sections is that it attempts to remove the disability which was imposed by the customary Hindu Law on acquisition of rights by a female Hindu but it does not enlarge or enhance the right which she gets under a will giving her a limited estate under Section 30 of the Act. 

Gift of property by father - terms of grant determine whether it acquires ancestral character

C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar & Ors 1953 AIR 495, 1954 SCR 243

http://indiankanoon.org/doc/1148062/

Supreme Court laid down the following tests to determine the character of self-acquired property gifted by father to his son(s) :

1. Whether power of alienation of the gifted property vested in the donee ? Such vested power implies the donee is absolute owner of the property and therefore donor did not intend the gift to become coparcenary property to the children of donee. Property so received by the donee remains self-acquired in his hands and does not become coparcenary property.

2. If there are no such clear words in the gift deed, it is to be constructed from the document by gathering the intention of the donor together with the surrounding circumstances. Decision to be arrived at by established rules of construction whether testator intended the property to pass as a gift to the donees or it was an integral part of partition of his properties.

3. There is no presumption that he intended either the one or the other as the testator is absolute owner of his self-acquired property and has absolute power over its dispensation.

Apex court referred to previous decisions on the subject and settled the law in view of contradictory decisions earlier. The court considered the question "what kind of interest a son would take in the self-acquired property of his father which he receives by way of gift or testamentary bequest from him, vis a vis his own male issue. Does it remain self-acquired property in his hands also untrammelled by the rights of his sons and grandsons or does it become ancestral property in his hands, though not obtained by descent, in which his male issue become co-owners with him? 

Calcutta High Court held in Muddan v. Ram 6 W.R. 71, that such property becomes ancestral property in the hands of his son as if he bad inherited it from his father.

Madras High Court held in Nagalingham v. Ram Chandra, I. L.R. 24 Mad. 429, that it is undoubtedly open to the father to determine whether the property which be has bequeathed shall be ancestral or self-acquired but unless he expresses his intention that it shall be self-acquired, it should be held to be ancestral.

Bombay High Court held it self-acquired property in the hands of the donee unless there is clear expression of intention on the part of the donor to make it ancestral.

Mitakshara law was examined in Rao Balwant v. Rani Kishori 25 I.A. 54 and the court held "father of the joint Hindu family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way." This is settled law.

After considering the aforesaid decisions, Supreme Court held :

"The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it by partition, made by the Grandfather himself during his lifetime. On both these occasions the grand father's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. .. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner."

Definition of self-acquired property by Yagnavalkya "whatever is acquired by the coparcener himself without detriment to the father's estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs." Father's gift is also included in definition of self-acquired property in Section 4, placitum 28 of the first chapter in Mitakshara.

Supreme Court settled the law as under :

1.  A property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.

2. Towards his self-acquired property, a father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of -interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the wellknown canons of construction.

Statutory Obligations of Coloniser under Haryana Development and Regulation of Urban Areas Act, 1975

Dlf Limited vs Manmohan Lowe & Ors 10 Dec 2013
http://indiankanoon.org/doc/87686679/

Haryana Development and Regulation of Urban Areas Act, 1975 - S. 3(3)(a)(iv) obligations on Coloniser and rights of plot/apartment owners - Common areas and facilities vs Community and other facilities

Held the two rights are distinct and different; undivided interest of plot/apartment owners is limited to common areas and facilities; Community and other facilities are for the benefit of the entire colony.

25. Community and other facilities like schools, hospitals, community centers, shops etc. provided in the land set apart under Section 3(3)(a)(iv) are, therefore, meant for the benefit of the entire colony and not for the apartment owners in one part of the colony and the costs incurred in discharge of the statutory obligations cannot be passed on/transferred from the plot owners/apartment owners by the colonizer.

30. The status of apartments together with its undivided interest in common areas and facilities, appurtenant to such apartment, shall for all purposes constitute heritable and transferable immovable property and each apartment owner shall be entitled to the exclusive ownership and possession of his apartment in accordance with the declaration.

32. The Apartment Act casts an obligation on the colonizer to file a statutory declaration. Section 6 read with Section 3(f) of the Apartment Act clearly indicates that clauses 1 to 8, except 7 of Section 3(f) are to be provided by the colonizer to the apartment owners and each apartment owner is entitled to an undivided interest in the common areas and facilities, in the percentage expressed in the declaration. The only exception is clause 7, which gives a right to the colonizer either to provide or not to provide in the declaration, the community and commercial facilities referred to in Section 3(3)(a)(iv) of the Development Act. There is a marked difference between “common areas and facilities” and “community and commercial facilities”. A colonizer is duty bound to provide all the common areas and facilities as per Section 3(f), except community and commercial facilities referred to in Section 3(f)(7). “Common areas and facilities” referred to in Section 3(f)(7) of the Apartment Act has a co-relation with the “Community and Commercial facilities” referred to in Section 3(3)(a)(iv) of the Development Act. It is for that reason that a discretion has been given to the colonizer to either provide the same or not to provide the same in the declaration referred to in Section 3(f) of the Apartment Act. The expression “may” used in Section 3(f)(7) of the Apartment Act clearly indicates that no duty is cast on the colonizer to give an undivided interest over those community and commercial facilities exclusively to the apartment owners of a particular colony, since the same have to be enjoyed by other apartment owners of DLF City, Phase I, II and III as well. Even otherwise, the colonizer could not have parted with his ownership rights exclusively to one Colony alone.

38. Common passages, staircases, lifts etc. are the examples of such common areas and facilities. Likewise, stilt parking area may be treated as part of common areas and facilities, in certain circumstances.

40. Section 3(3)(a)(iv) of the Development Act read with the above- mentioned clauses in the agreement would indicate that ownership of the portion of the land set apart for the common areas and facilities referred to therein vest with the Colonizer so also the obligation “at his own cost” to provide those facilities in the land set apart for the said purpose. The Colonizer cannot recover cost of land or the amounts spent by him for providing those facilities from the apartment owners. It is for the said reason that clause 7 of Section 3(f) of the Apartment Act has not made it obligatory, on the part of the Colonizer to include the “community and commercial” facilities in the declaration. If the colonizer includes the same within the declaration, then Section 6 of the Apartment Act will kick in, consequently, the apartment owners would be entitled to the undivided interest in respect of the community and commercial facilities provided therein without bearing the cost incurred by the colonizer in purchasing the land and the cost of construction. 

Two other decisions considered by the court are :

In Ansal Properties and Industries Limited. V. State of Haryana and Another(2009) 3 SCC 553, Supreme Court held that Section 3(3)(a)(iv) only provides for the land to be transferred to the State and no provision of the Act authorizes the State Government to recover charges towards cost of construction.

In DLF Qutub Enclave Complex Educational Charitable Trust v. State of Haayana and Others (2003) 5 SCC 622, Supreme Court held that construction of schools, hospitals, community centres and other community buildings do not come within the purview of the term “development works”, the costs therefore are not to be borne by them.

Criminal Law - Witness Examination - power of court at any stage of the proceedings

I am again prompted by the argument in Salman Khan's bail application before Bombay High Court as to eye witness Kamaal Khan not examined. Nothing prevented him from applying for summoning Kamaal Khan as witness during the trial. Rather S. 311 CrPC mandates the court to summon and examine such person if his evidence appears to it to be essential to the just decision of the case. If Salman Khan believed he would be vindicated by evidence/examination of Kamaal Khan, he had a duty to the court to seek summons for his examination. Now after being convicted, raising the plea is strange. 

Section 311 of the CrPC  reads as follows:- " 311. Power to summon material witness, or examine person present- Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though no summoned as a witness, or re-call and re-examine, any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

In exercising the second part which is mandatory the Court is required to take the recourse of Section 165 of the Evidence Act as the person so called is a witness of Court and not a prosecution or defence witness and it is an impediment upon the prosecution to examine or cross-examine the witness prior to the Court. 

Abdul Mannan vs State of WB http://indiankanoon.org/doc/125632071/

Kolkatta High Court at paras

 14) The section is manifestly in two parts. Whereas the word used in the first part is 'may', the second part uses 'shall'. In consequence, the first part gives purely discretionary authority to a criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code

(a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.

15) The scope of exercise of powers under Section 311 of the Code of Criminal Procedure has fallen for consideration of the Hon'ble Supreme Court in the matter of Iddar and others Vs. Aabida and another reported in AIR 2007 SC 3029/2007 Cr.L.J. 4313 wherein the Hon'ble Supreme Court observed - " The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

Criminal Law - Is it mandatory to examine all eye witnesses

I am prompted by the argument of Mr Deshpande, advocate for Mr Salman Khan in Bombay High Court that the sessions court has not examined Mr Kamaal Khan, eye witness to the accident.

Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. 

In Vadivelu Thevar v. State of Madras AIR 1957 SC 614 and it will be useful to take note of para 11 of the report, which reads as under :

".The contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognised in S.134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. ."

In Amar Singh vs Balwinder Singh & Ors (2003) 2 SCC 518 http://indiankanoon.org/doc/1820883/ Supreme Court held "The prosecution having examined three eye-witnesses, in our opinion, there was no necessity of multiplying the number of witnesses and no adverse inference could be drawn against the prosecution merely on the ground that Kashmira Singh or Pritam Singh were not examined."

Criminal Law - Duties of Appellate Court

Amar Singh vs Balwinder Singh & Ors (2003) 2 SCC 518

indiankanoon.org/doc/1820883/

Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction. It is, therefore, mandatory for the Appellate Court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account the testimony of the eye-witnesses is of paramount importance and if the Appellate Court reverses the finding recorded by the Trial Court and acquits the accused without considering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 CrPC.

In Bishwanath Ghosh vs State of West Bengal & Anr AIR 1987 SC 1155, it was held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant miscarriage of justice and the order of acquittal was liable to be set aside. It was also held that the High Court had to satisfy itself upon perusal of the records that there was no reliable and credible evidence to warrant the conviction of the accused. 

In State Of Uttar Pradesh vs Sahai And Ors AIR 1981 SC 1442, http://indiankanoon.org/doc/974810/ it was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial miscarriage of justice so as to invoke extra-ordinary jurisdiction of Supreme Court under Article 136 of the Constitution.

Supertech Builder Case - judgment copied from SC website - importance of correct reporting

On seeing the news report that SC has awarded 14% compound interest I was very surprised and taken aback. On going through the judgment I find that Supertech had offered the complainant 14% compound interest with refund of principal paid as one of the options and SC merely restrained Supertech from going back on the option exercised by complainant and accepted by Supertech.

This is a classic case of how private builders use public money in the guise of constructed flat offer and in fact happen to launch Collective Investment Scheme in disguise by practically evading the strict requirements of SEBI for such collective investment scheme.

Buyers beware!

ANUPAM CHAKRABORTY AND ANR.  vs SUPERTECH LTD. AND ORS.                                                     

                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION


                              CIVIL APPEAL NO. 1962 OF 2015
                          (Arising out of SLP(C) No. 2256 of 2015)


              ANUPAM CHAKRABORTY AND ANR.                        .. APPELLANT(S)

                                                 VERSUS

              SUPERTECH LTD. AND ORS.                            .. RESPONDENT(S)

                                               O R D E R


             1.          Permission to file the special leave petition is

             granted.           Delay condoned.


             2.          Leave granted.


             3.          This    appeal   is   directed      against   the    impugned

             judgment           and   order    passed   by    the   High     Court   of

             judicature at Allahabad in Writ-C No. 65085 of 2012,

             dated 11.04.2014.


             4.          The appellants-herein are co-allottees of Flat

             No.3-3, Ceyane Tower being built by the Respondent
Signature Not Verified

Digitally signed by
Charanjeet Kaur
Date: 2015.02.20
16:33:06 IST
Reason:
                                      2

No.1-Company.          The respondent No.1 was allotted a part

of    Plot   No.4      measuring    48,263.00         Square     meters      in

Sector 93 by the Respondent No.4-NOIDA Authority on

23.11.2004       for     development      of    Emerald        Court      Group

Housing Society.              The layout plan was approved and

sanctioned     by      the    respondent       No.4.      By    way    of   an

supplementary          lease     deed     an    additional         area      of

6,556.51     square       meters    was     allotted      to    respondent

No.1.        The      map     and   revised      building          plan     was

sanctioned       by     the    respondent      No.4    and     approval      to

construct Tower-16 (Ceyane) and Tower-17 (Apex) being

24 storeyed buildings was granted.


5.      After being satisfied by the necessary approvals

the appellants-herein booked Unit No.303 in Tower-16

(Ceyane).     In the meanwhile, respondent No.1 purchased

additional floor area and got the map revised vide

sanction dated 02.03.2012 and was permitted to raise

the    heights     of    the    Tower-16       (Ceyane)      and    Tower-17

(Apex) from 24 floors to 40 floors.
                                       3




6.     The       respondent           No.2-        Resident            Welfare

Association of Supertech Emerald Court challenged the

revised      sanctioned       plan    before       the    High        Court    by

filing    a     Writ    Petition.          The     High    Court       by     its

impugned judgment and order has directed demolition of

Tower-16 (Ceyane) and Tower-17 (Apex) on the ground

that     the    sanction      plan     was      violative        of    minimum

distance requirements between building blocks as per

Regulation           24.1.2(6)        of     the         Noida        Building

Regulations, 2010.             The High Court further directed

the    Respondent       No.1     to       refund    the        consideration

received       from    the    private      parties       who    have    booked

apartments/ flats in Tower 16 and Tower 17 along with

interest at the rate of 14 per cent.                     Aggrieved by the

judgment       and    order    passed      by    the     High     Court       the

appellants are before us in this appeal.



7.     A limited prayer is made in this appeal, though

by looking into the record of the case, it appears
                                         4

that    the     appellants            are    questioning        the       afore-

mentioned judgment and order passed by the High Court.


8.     At the time of hearing of the appeal, learned

counsel for the appellants submits that pursuant to

the order passed by the High Court the appellants were

offered to choose one of the three options made by the

respondent         No.1    herein       vide        option     letter      dated

19.04.2014, namely;


       (a)     If    the        buyer       wants     refund        of    his
       deposited      money,          the    Company    shall        refund
       his/ her received consideration alongwith 14%
       interest           compounded          annually         on        such
       consideration.

       (b)    If    the    buyer      wants    to     swap     with      some
       other       unit    in    any     other       projects       of    the
       Company, then the Company shall shift that
       Buyer to that Project duly considering the
       consideration         received        from     the    buyer       till
       date, in proportion to the total cost of the
       unit    in    his/       her     allotment      document,          the
       percentage of which shall be applied on the
                                   5

        rack rate price of Apex/ Ceyane as on date to
        arrive at the credit value for the swapping
        in the some other project of Supertech.

        (c)     Buyer who want to have their own flats
        in Apex/ Ceyane Tower, shall continue with
        the project.


9.      He further submits that pursuant to the offer

made, the appellants had accepted the first option

that is made in the option letter, wherein they have

claimed refund of the amount deposited by them with 14

per cent interest compounded annually, The respondent

No.1    after    receipt    of   the   option   so   made    by   the

appellants, had in fact calculated the amounts payable

by the    respondent No.1 to the appellant(s).




10.     Since    respondent No.1       itself had made an offer

by giving options to the appellants and that offer has

been accepted by the appellants-herein by choosing the

first         option,      in    our     opinion,      now        the
                               6

respondent No.1 cannot deny to accept the first option

made by the appellants.


11.   In that view of the matter, we now direct the

respondent   No   1.-herein   to    refund    the   amount   of

deposit made by the appellants as reflected in the

memorandum of calculation.        The principal amount shall

be refunded by the respondent No. 1 within thirty days

from today and the interest on the aforesaid amount

shall be refunded within sixty days from today.


12.   With   these   observations     and    directions,     the

appeal is disposed of.



                                         ...............CJI.
                                             [ H.L. DATTU ]



                                         .................J.
                                              [ A.K. SIKRI ]
NEW DELHI,
FEBRUARY 16, 2015.
 ITEM NO.14                 COURT NO.1                 SECTION XI

                S U P R E M E C O U R T O F        I N D I A
                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)     No(s).   2256/2015

(Arising out of impugned final judgment and order dated
11/04/2014 in WP No. 65085/2012 passed by the High Court Of
Judicature at Allahabad)

ANUPAM CHAKRABORTY AND ANR.                           Petitioner(s)

                                  VERSUS

SUPERTECH LTD. AND ORS.                           Respondent(s)
(With appln. for permission to file SLP and office report)

Date :16/02/2015 This petition was called on for hearing today.

CORAM :
          HON'BLE THE CHIEF JUSTICE
          HON'BLE MR. JUSTICE A.K. SIKRI

For Petitioner(s)   Mr.   Sameer Parekh, Adv.
                    Mr.   Faisal Showani, Adv.
                    Ms.   Pallavi Sharma, Adv.
                    Mr.   Abhinay, Adv.
                    for   M/s. Parekh & Co.,Adv.

For Respondent(s)   Mr.   V. Giri, Sr. Adv.
                    Mr.   R. Chandrachud,Adv.
                    Mr.   Rajnish Singh, Adv.
                    Mr.   K. Mohan, Adv.
                    Mr.   Harshmit Randhwa, Adv.

    UPON hearing the counsel the Court made the following
                          O R D E R

      Permission to file the special leave petition is
   granted. Delay condoned.

      Leave granted.

      The appeal is disposed of      in terms of the signed
   order.


   [ Charanjeet Kaur ]                     [ Vinod Kulvi ]
      Court Master                         Asstt. Registrar

             [ Signed order is placed on the file ]
 

Premature Suits

Vithalbhai Pvt. Ltd vs Union Bank Of India Appeal (civil) 2390 of 2002
http://indiankanoon.org/doc/32662/

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency.