Monthly Archives: August 2013

Principle of Issue Estoppel

The principle of issue estoppel is also known as ‘cause of action estoppel’ and the same is different from the principle of double jeopardy or autrefois acquit, as embodied in Section 403, Crpc. This principle applies where an issue of fact has been tries by a competent Court on a former occasion and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. I would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a distinct offence, which might be permitted by Section 403 (2) Crpc. Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. If the cause of action was determined to exist, i.e. judgment was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. Ravinder Singh v. Sukhbir Singh, 2013 (80) ACC 950.

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Right to Pension

The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India, AIR 1962 Punj 503. I was held that such a right constitutes “property” and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh, ILR 1965 Punj 1 approved the decision of the Learned Senior Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is “property” within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as “property” cannot possibly undergo such mutation at the whim of a particular person or authority.
In State of West Bengal v. Haresh C. Banerjee and Ors. (2006) 7SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”.

A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. State of Jharkhand and others v. Jitendra Kumar Srivastava and others, C.A. No. 6770 of 2013 decided on 14.08.2013.

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Dowry Death vis-à-vis Murder

In Rajbir v. State of Haryana, (2010) 15 SCC 116 the court had directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not the true purport of the order passed by the court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that the Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of the Court.

                It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder punishable under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. Jasvinder Saini and others v. State, (2013) 7 SCC 256.

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Sentencing – Has a social Goal

It was held in Shyam Narain v. State, (2013) 7 SCC 77 as under:
“Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.”

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Filed under Criminal Law, Sentencing

Counterfeiting of Currency Notes

The crux of Sections 489-A, 489-C, 489-D and 489-E of the Indian Penal Code is to prevent the counterfeiting of currency notes or bank-notes. For the purpose of application of aforesaid Sections, the following ingredients are necessarily required and are to be strictly interpreted:
(a) To perform any part of process of counterfeiting of currency-notes or bank-notes;
(b) Possession of any forged or counterfeit currency-note or bank-note;
(c) Knowing or having reason to believe the same to be forged or counterfeit;
(d) Performing or intending with intention to use any part of the process of making, buying, selling or dispossessing any machinery, instrument or material for the purpose of being used for forging or counterfeiting any currency-note or bank-note, would be liable for punishment under the aforesaid Act. Anurag Sharma v. State of U.P., 2013 (82) ACC 128.

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Undue Influence

In a recent Judgment of the Allahabad High Court it was held as under:
“Undue influence does not connote excessive, inordinate or disproportionate influence but something wrongful. Acts of undue influence sometime range themselves under either coercion or fraud. Person having influence over another and by that influence induces the will of the other to his subjection, then it is such coercion as is sufficient to constitute undue influence. It is an influence whereby control is obtained over the mind of the victim by insidious approaches and seductive artifices. It may arise where parties stand to one another in a relation of confidence which puts one of them in a position to exercise over the other, an influence, which may be perfectly natural and proper in itself, but , is capable of being unfairly used. The question whether a party is in a position to dominate other is broadly a question of fact. No general law can be laid down as to when one would be in a position to dominate over the will of the other owing to complexities of human nature and relations. It may arise due to personal relationship as a result of circumstances, in which the contract was entered into. In Inchenoriah Binte Mohd. Tahir v. Shaik Allie Bin Omar Bin Abdullah Bahashuan, AIR 1929 PC 3, it was held, where the donor is not only an old lady of feeble health but is also entirely dependent upon the done, her nephew, even for food and clothes, there is sufficient relation between them to presume undue influence being responsible for bringing about the gift.
A person of hundred years age, indebted to third parties and for the purpose of managing his own livelihood, dependent upon another can be said to be in a position to be influenced and dominated by the will of such person on whom he relies and depends.
Undue influence was read alongwith fraud and coercion and in Bishundeo Narain and another v. Seogeni Rai and Jagernath, AIR 1951 SC 280, it was held that in cases of fraud, “undue influence” and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.” Haridwar(D) through his legal heirs v. Smt. Kulwant (D) through her legal heirs, 2013 (4) AWC 3302.

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