Monthly Archives: March 2020

Tender – Rights of Bidder

In Meerut Development Authority v. Association of Management Studies, (2009) 6 SCC 171, the Hon’ble Apex Court held that tender is an offer. It is an invitation to seek communication to convey acceptance. It was further held as under:

        “A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform its obligations. The terms of the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process.

        The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the aforesaid ground, the reason being the terms of the invitation to tender are in the realm of contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.” Bihar State Housing Board v. Radha Ballabh Health Care and Research Institute Private Ltd., (2019) 10 SCC 483.

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Imposition of Death Sentence – Circumstances Therefor

It is clearly well settled that normal punishment for the offence under Section 302 IPC is life imprisonment but in a case where the incident is of “rarest of rare cases”, death sentence is to be imposed. It is equally well settled that only special facts and circumstances will warrant passing of death sentence and a just balance has to be struck between aggravating and mitigating circumstances, before the option is exercised. While referring to the earlier cases in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470, further guidelines are summarised in the judgment in Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338 as under:

“The following guidelines which emerge from Bachan Singh v. State of Punjab, (1980) 2 SCC 684 will have to be applied to the facts of each individual case where the question of imposition of death sentence arises:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the “offender” also require to be taken into consideration along with the circumstances of the “crime”.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. murder by a hired assassin for money or reward or a cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course of betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of “bride-burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of the murder is an innocent child, or a helpless woman or an old or infirm person or a person vis-à-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.” Ishwari Lal Yadav v. State of Chhatisgarh, (2019) 10 SCC 423.

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Constructive Trust

A constructive trust arises by operation of law, without regard to the intention of the parties to create a trust. It does not require a deed signifying the institution of trust. Under a constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it. The function of the court is only to declare that such a trust has arisen in the past.

Constructive trust can arise over a wide range of situations. To quote Cardozo, J., “a constructive trust is a formula through which the conscience of equity finds expression”.

Story on Equity Jurisprudence has explained “Constructive Trust” as: “One of the most common cases in which a Court of equity acts upon the ground of implied trusts in invitum, is where a party has received money which he cannot conscientiously withhold from another party. It has been well remarked, that the receiving of money which consistently with conscience cannot be retained is, in equity, sufficient to raise a trust in favour of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore, whenever any controversy arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et bono, retain it. Illustrations of this doctrine are familiar in cases of money paid by accident, or mistake, or fraud. And the difference between the payment of money under a mistake of fact, and a payment under a mistake of law, in its operation upon the conscience of the party, presents the equitable qualifications of the doctrine in a striking manner. It is true that Courts of Law now entertain jurisdiction in many cases of this sort where formerly the remedy was solely in Equity; as for example, in an action of assumption for money had and received, where the money cannot conscientiously be withheld by the party; following out the rule of the Civil Law; Quod condition in debiti non datur uitra, quam locupletior factus est, qui accepit. But this does not oust the general jurisdiction of Courts of Equity over the subject-matter, which had for many ages before been in full exercise, although it renders a resort to them for relief less common, as well as less necessary, than it formerly was. Still, however, there are many cases of this sort where it is indispensable to resort to Courts of Equity for adequate relief and especially where the transactions are complicated, and a discovery from the defendant is requisite.” Janardan Dagdu Khomane v. Eknath Bhiku Yadav, (2019) 10 SCC 395.

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Repeal of a Statute – Effect of

In State of Rajasthan v. Mangilal Pindwal, (1996) 5 SCC 60, it was held as follows:

        “As pointed out by the Court, the process of substitution of statutory provision consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. In other words, the substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. As regards repeal of a statute, the law is thus stated in Sutherland on Statutory Construction:

        “2042. The effect of the repeal of a Statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the Statute, which, except as to proceedings past and closed, is considered as if it had never existed.”

        In Qudrat Ullah v. Municipal Board, Bareilly, (1974) 1 SCC 202, it was held as under:         “This means that as a result of repeal of a statute as repealed ceases to exist with effect from the date of such repeal but the repeal does not affect the previous operation of the law which has been repealed during the period it was operative prior to the date of such repeal.” State of Rajasthan v. Trilok Ram, (2019) 10 SCC 383.

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Criminal and Departmental Proceedings – Have Different Objectives

Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of Corruption Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju, (2019) 10 SCC 367.

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Sentencing for Crimes – Tests for

Sentencing for crimes has to be analysed on the touchstone of three tests, viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).         Under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach. State of Madhya Pradesh v. Udham, (2019) 10 SCC 300.

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Scope of – A Will

A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing the distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. Registration of a will does not make it any more effective. Shiv Kumar v. Union of India, (2019) 10 SCC 229.

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No Bar To Trial – Under Two Different Enactments

In State of Maharashtra v. Sayyed Hassan, the accused was prosecuted under Sections 26 and 30 of the Food Safety and Standards Act, 2006 as well as Sections 188,272,273 and 328 IPC for transportation and sale of prohibited gutka/pan masala. The Hon’ble Bombay High Court in Ganesh Pandurang Jadho v. State of Maharashtra, 2016 CrLJ 2401 held that Section 55 of the Food Safety and Standards Act, 2006 being a specific provision made in a special enactment, Section 188 IPC was inapplicable. The Hon’ble Supreme Court remanded the matter to the High Court and held as under:

        “There is no bar to a trial or conviction of an offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under Indian Penal Code and at the same time, an offence under any other law.”         In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, the Hon’ble Supreme Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75.

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Magistrate – Responsibility to Pass An Order For Registration of F.I.R.

The Magistrate should not shirk their legal responsibility to pass an order for registration of the FIR and its investigation by the police on the applications under Section 156(3) CrPC in the cases where on the basis of the averments made therein and the material, if any, brought on record in support thereof, prima facie cognizable offence of serious nature requiring police investigation is made out and in such cases the aggrieved person should not be compelled to collect and produce the evidence at his cost to bring home the charges to the accused by passing an order to treat the application under Section 156(3)  as complaint thereby forcing the aggrieved person to proceed in the matter provided by Chapter XV CrPC. Hari Shankar v. State of U.P., 2020 (110) ACC 535.

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Accused – Has No Right to Choose the Investigating Agency

In Narmada Rai v. State of Gujarat, (2011) 5 SCC 79, it was held as under:

        “It is trite law that accused persons do not have a say in the matter of appointment of an Investigation Agency. The accused persons cannot choose as to which Investigation Agency must investigate the alleged offence committed by them.”

        Further in the case of Rajendra Bhatt v. Union of India, (2016) 1 SCC 1 it was held as under:

        “The accused has no right with reference to the manner of investigation or mode of prosecution.”

        The Hon’ble Apex Court in Romila Thapar v. Union of India, (2018) 10 SCC 753, has held as under:         “It is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation.” Silpa Devi Patel v. State of U.P., 2020 (110) ACC 514.

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