Monthly Archives: November 2012

Instigation to Commit Suicide

In Chitresh Kumar Chopra v. State , (2009) 16 SCC 605 the Apex Court while dealing with the term “instigation” held:
“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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
Thus to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encoureg the doing of an act by the other by ‘goading’ or ‘urging forward’. The dictionary meaning of the word ‘goad’ is a thing that stimulates someone into action; provoke to action or reaction, to keep irritating or annoying somebody until he reacts.”
The court in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 while dealing with a similar situation observed that what constitutes “instigation” must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. More so, a continued course of conduct is to create such circumstances, that the deceased was left with no other option but to commit suicide.
The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation.
It is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances which had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. Praveen Pradhan v. State of Uttaranchal

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Comparison of Powers under Section 397 and 482 of Crpc

There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the Court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor v. State, (1980) 1 SCC 43. In that very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows fine distinction between the powers exercisable by the Court under these two provisions. In that very case, this Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court’s jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction. Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460.

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Electricity Dues – Liability of Directors

In a recent Judgment of the Allahabad High Court – Piyush Kumar v. State of U.P., it was held as under:
“A company is an artificial person and can only contract through agents. The normal mode of signing is to use the words ‘on behalf of the Company’ and if the Director, as an agent of the company signs the contract for the company, no personal liability is attached to him. The Directors thus under Section 46 of the Companies Act, 1956 can sign the contracts for the Company, which binds the Company, unless the Articles of Association of the Company or any resolution of the Board of Directors restricts or takes away such authority. The Directors are not personally liable, unless it appears that they take personal liability. The Directors may be made personally liable in damages, where they act beyond their powers; act by making negligent misrepresentation; acts in violation of the provisions of the Companies Act such as Section 77 or plays fraud representing the company.
Clause 4.3 (f) (iv) of The U.P. Electricity Supply Code, 2005 provides that outstanding dues will be first charge on the assets of the company and the licensee shall ensure that this is entered in the agreement with the new applicant. Sub-clause (v) provides that recovery proceedings against the defaulting consumer, and where the consumer is a company, from the directors of the Company, shall be ensured.
It is only after the assets of the Company are unable to meet the demand of the department then recovery proceedings may be initiated against the Directors of the Company. Clause (v) of Para 4.3 (f) of the Supply Code provides that where a financial institution has auctioned the property without consideration to licensee’s charge on assets, claims may be lodged with the concerned financial institution with diligent pursuance. The Directors manage the company for its shareholders. They are in charge of the management and the business of the Company for the benefit of the shareholders. They are not liable for the dues of the company on the ground that they have signed an agreement on behalf of the company, unless there is specific provision, or when they agree under the agreement or execute personal guarantees or bonds for due payment of the amount.”

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Filed under Electricity Laws, Liability of Directors

“Negligence”, “Culpable Rashness” and “Culpable Negligence”

“Negligence” means omission to do something which a reasonable and prudent person guided by the consideration which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a give case, even doing what one was ought to do can constitute negligence.
“Culpable Rashness” is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria).
“Culpable negligence” is acting without the consciousness that the illegal and mischevious effect will follow, but in circumstances which show that the actor has not exercised the action incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civil duty of circumspection. Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284.

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