Monthly Archives: August 2012

Unauthorised Use of Energy – Assessment of

In a recent judgment of the Allahabad High Court in Sanjay Rizvi v. Managing Director, Kanpur Electricity Supply Co., and others, decided on April 20, 2012, it was held as under:

Before issuing an assessment notice, the authority must record it’s conclusion that the person concerned or any other person benefited has used electricity unauthorisedly in terms as defined in Explanation (b) to Section 126 of the Electricity Act, 2003. Though the 2003 Act does not provide that Assessing Officer has to provide opportunity of hearing at the stage of recording of the conclusion, however, it does not simultaneously prohibit the same. No person can come to the conclusion of unauthorised use of electricity suo motu without giving an opportunity to the concerned person as deprivation will amount to violation of principles of natural justice.

A perusal of clause 6.8 (a) (i), (ii), (iv) and (v) of the U.P.  Electricity Supply Code, 2005,  on inspection of the premises by the Assessing Officer, if it is found that some irregularities constituting unauthorized use of electricity have been committed, the Assessing Officer shall prepare a report at the site giving details thereof and will hand over the copy of such report to the consumer or his representative. The emphasis is that prima facie conclusion recorded by the Assessing Officer should be communicated to the consumer. Clause 6.8 (b) (ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Clause 6.8 (c) (i) provides that opportunity of personal hearing shall also be given and thereafter the Assessing Officer shall pass a speaking order specifically disclosing whether unauthorized use of energy is established or not and where it is so determined the quantum of amount which the consumer has to pay, i.e., assessment shall be made by him. Thus, Clause 6.8 provides a detailed procedure in which the assessment would have to be made by the Assessing Officer.

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Hindu Adoptions and Maintenance Act, 1956, Section 16 – Presumption Under

In a recent judgment of the Allahabad High Court (Phool Chand v. Joint Director of Consolidation),it was  held as under:

“The presumption under the Section is that if the deed is signed by the person giving and the person taking in adoption the provision has been complied with. It is the person challenging the factum of adoption who has to disprove the adoption. A mere plea that the deed is not genuine is not sufficient to rebut the presumption under Section 16 of the Act. Under such circumstance, the plea that the requirements of Section 11 of the Act had not been satisfied are not made out and hence loose all significance with the registration of the deed of adoption.”

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Recovery of Tainted money – is not sufficient to record a conviction

Section 20 of the Prevention of Corruption Act, 1988 states as under:

 

20. Presumption where public servant accepts gratification other than legal remuneration.—(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.

 

Absence of – Evidence of Demand

It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery alone would not be a ground to convict the accused. T. Subramanian v. State of Tamil Nadu, (2006) 1 SCC 401 : AIR 2006 SC 836.

The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the Act. It is also settled in law that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or reward as stipulated under Section 7 of the Act[1]. It is obligatory on the part of the Court to consider the explanation offered by the accused under Section 20 of the Act and the consideration of the explanation has to be on the anvil of preponderance of probability. It has not to be proven beyond all reasonable doubt.

Presumption under – Is Obligatory

In the case of C.M. Girish Babu v. CBI, the Apex Court held as under:

“It is well settled that the presumption to be drawn under Section 20 is not an inviolable one.  The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.”

A presumption under Section 20 of the Act becomes obligatory. It is presumption of law and casts an obligation on the Court to apply it in every case brought under Section 7 of the Act. Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80.


[1] Section 7 of the Act reads as under:

“7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Explanations.—(a) “Expecting to be a public servant.” If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) “Gratification.” The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) “Legal remuneration.” The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”

 

 

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Abetment of Suicide

Suicide – Meaning of

The word “suicide” in itself is nowhere defined in the Penal Code, however, its meaning and import is well known and requires no explanation. “Sui” means “self” and “cide” means “killing”, thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. M. Mohan v. State, (2011) 3 SCC 626

 

In re DAVIS, DECD., [1968] 1 Q.B. 72, it was held thus:

Suicide is not to be presumed. It must be affirmatively proved to justify the finding. Suicide requires an intention. Every act of self-destruction is, in common language “described by the word ‘suicide,’ provided it be the intentional act of a party knowing the probable consequence of what he is about”: Rolfe B. in Clift v. Schwabe, (1846) 3 C.B. 437

 

Abetment of suicide

Section 306 and107 of the Indian Penal Code read as under:

“306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

 

“107. Abetment of a thing.—A person abets the doing of a thing, who—

First.—Instigates any person to do that thing; or

Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration

A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

 

In our country, while suicide itself is not an offence considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under Section 309 IPC.

 

 

Ingredients

In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628

 

As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 IPC. Chitresh Kumar Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605

 

The Apex Court in Ramesh Kumar, (2001) 9 SCC 618 has examined different shades of the meaning of “instigation”. Para 20 thereof reads as under:

20. Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

 

Grounds for Conviction

 

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Apex Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190

 

 

 

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