Monthly Archives: April 2013

Dispossession vis-à-vis Discontinuance of possession

The term “dispossession” and “discontinuance of possession” in Article 142, Act IX of 1908 came to be considered before the Calcutta High Court in Brojendra Kishore Roy Chowdhury v. Bharat Chandra Roy and others, AIR 1916 Cal. 751 and the court held:
“Dispossession implies the coming in of a person and the driving out of another from possession. Discontinuance implies the going out of the person in possession and his being followed into possession by another.”
The distinction between “dispossession” and “discontinuance” has been noticed in Gangu Bai v. Soni, 1942 Nagpur Law Journal 99, observing that “dispossession” is not voluntary, “discontinuance” is. In dispossession, there is an element of force and adverseness while in the case of discontinuance, the person occupying may be an innocent person. For discontinuance of possession, the person in possession goes out and followed into possession by other person.
In Agency Company v. Short, 1888 (13) AC 793, the Privy Council observed that there is discontinuance of adverse possession when possession has been abandoned. The reason for the said observation finds mention on page 798 that there is no one against whom rightful owner can bring his action. The adverse possession cannot commence without actual possession and this would furnish cause of action.
Dispossession is question of fact. The term refers to averments in the plaint exclusively and cannot be construed as referring to averments in the plaint in the first instance and at a later stage to the finding on the evidence. The indicas of discontinuance are also similar to some extent. It implies going out of the other person in possession and is being followed into possession by another. U.P. Gandhi Smarak Nidhi v. Aziz Mian, (2013) 119 R.D. 106.

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Filed under Civil Law, dispossession

Responsibilities of Editor

A news item has the potentiality of bringing doomsday for an individual. The Editor controls the selection of the matter that is published. Therefore, he has to keep a careful eye on the selection. Blue-pencilling of news articles by anyone other than the Editor is not welcome in a democratic polity. Editors have to take responsibility of everything they publish and to maintain the integrity of published record. It is apt to remind the answer of the Editor of “The Scotsman”, a Scottish Newspaper. When asked what it was like to run a national newspaper, the Editor answered “Run a newspaper! I run a country”. It may be an exaggeration but it does reflect the well-known fact that it can cause far-reaching consequences in an individual and country’s life.
From the scheme of the Press and Registration of Books Act, 1867 it is evident that it is the Editor who controls the selection of the matter that is published in a newspaper. Further, every copy of the newspaper is required to contain the names of the owner and the Editor and once the name of the Editor is shown, he shall be held responsible in any civil and criminal proceeding. Further, in view of the interpretation clause, the presumption would be that he was the person who controlled the selection of the matter that was published in the newspaper. The presumption under Section 7 of the Act is a rebuttable presumption and it would be deemed a sufficient evidence unless the contrary is proved. It was held in K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670 as under:
“The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper.”Gambhirsinh R. Dekare v. FalgunbhaiChimanbhai Patel, (2013) 3 SCC 697.

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Filed under Criminal Law, Responisibilites of Editor, Uncategorized

False, Malicious and Vexatious Proceedings

In a recent Judgment of the Supreme Court, it was held as under:
“The dictionary meaning of the word ‘false’ means that, which is in essence, incorrect, or purposefully untrue, deceitful etc. Thus the word, ‘false’ is used to cover only unlawful falsehood. It means something that is dishonestly, untrue and deceitful and implies an intention to perpetrate some treachery or fraud. In jurisprudence, the word ‘false’ is used to characterize a wrongful or criminal act, done intentionally and knowingly, with knowledge, actual or constructive. The word ‘false’ may also be used in a wide or narrower sense. When used in its wider sense, it means something that is untrue whether or not stated intentionally or knowingly, but when used in its narrower sense, it may cover only such falsehoods, which are intentional. The question whether in a particular enactment, the word ‘false’ is used in a restricted sense or a wider sense, depends upon the context in which it is used.
In Commissioner of Sales Tax, Uttar Pradesh v. Sanjiv Fabrics, (2010) 9 SCC 630, the Court, after relying upon certain legal dictionaries, explained that the word false describes an untruth, coupled with wrong intention or an intention to deceive. The Court further held that in case of criminal prosecution, where consequences are serious, findings of fact must be recorded with respect to mens rea in case a falsehood as a condition precedent for imposing any punishment.
In West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, the Court dealt with the term “malicious prosecution” by referring to various dictionaries etc. as:
“Malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result.
‘Malice’ consists in a conscious violation of the law to the prejudice of another and certainly has different meanings with respect to responsibility for civil wrongs and responsibility for crime.
Malicious prosecution means – a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:-
Malice is not merely the doing of a wrongful act intentionally but it must be established that the defendant was actuated by malus animus, that is to say, by spite or ill will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; ‘malice’ and ‘want of reasonable and probable cause’ have reference to the state of the defendant’s mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.”
The word “vexatious” means ‘harassment by the process of law’. ‘lacking justification’ or with ‘intention to harass’. It signifies an action not having sufficient grounds and which therefore, only seeks to annoy the adversary.
The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis) and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the Court. Such proceedings are different from those that involve ordinary and proper use of the process of the Court. Ravinder Singh v. Sukhbir Singh, 2013 (80) ACC 950.

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Filed under Criminal Law

Doctrine of Equality – Among Persons Found Guilty

The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate, i.e. lesser punishment for serious offences and stringent punishment for lesser offences. Rajendra Yadav v. State of Madhya Pradesh, (2013) 3 SCC 73.

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Filed under Employment Law, Equality