SJA NEWSLETTER Monthly Newsletter published by the Jammu & Kashmir State Judicial Academy Volume - 2, Issue 9 September, 2009 Topic of the Month Chief Patron Hon’ble Mr. Justice “The Constitution of India, which according to Granville Barin Ghosh Austin is primarily a social document, encapsulates the Chief Justice aspirations and hopes of the people of this great nation and Judge-In-Charge guarantees fundamental rights to every citizen. Hon’ble Mr. Justice Hakim Imtiyaz Hussain India presents a mosaic of different cultures, a confluence of diverse religious and schools of philosophy and a synthesis of Editor different ethnical and linguistic groups. However, the largest and Gh. Mohi-ud-Din Dar Director SJA greatest democracy in the entire world where all the global convergent influences, including Hinduism, Islam, Christianity, Contents Sikhism, Jainism, Buddhism, Secularism, Liberalism, Topic of the Month........................... 1 democracy, socialism, Gandhism run parallel. It is extremely Academy News................................ 2 distressing to point out that all people do not have a level playing Legal Jottings .................................. 3 field. News & Views................................. 5 The law which dictates as well as shapes the social Case Comments .............................. 6 behaviour of the population of any society is a close ally of liberty SUBSCRIPTION RATES and constitutes important means of fostering personal freedom, Single Copy : Rs. 20.00 safeguarding human rights and furthering broad social goals of Annual : Rs. 240.00 equality and general well being. Law and life are symbiotic, law (Payment only through D.D. in favour of the touches us at all points. It is an indubitable structure, organic and Jammu & Kashmir State Judicial Academy) The Editor living and, in essence, nothing but synonym for fundamental SJA Newsletter principles of equity and fair play. The judges and lawyers have Jammu & Kashmir the undeniable duty to uphold and defend the law. Equal justice State Judicial Academy Janipur, Jammu-180001 has to be delivered irrespective of caste, creed, religion, sex, place Ph: Jammu: 0191-2530871 of birth, socio-economic status. This is also our Constitutional Srinagar: 0194-2472078 Fax: Jammu: 0191-2530783 mandate”. Srinagar: 0194-2472078 E-mail : [email protected] (Taken from speech delivered on 11-11-2005 at All India Seminar on Social Responsibility of Legal Fraternity by Hon’ble Dr. Justice A.R. Compiled, Composed & Layout by : Pankaj Kumar Gupta Lakshmanan, Former Judge, Supreme Court of India .) Deputy Registrar CASE COMMENTS Ghous-ul-Nisa Jeelani, Spl. Judge, Anti-corruption, ACADEMY NEWS Srinagar who participated in the workshop as Resource person as she had been the Presiding One day workshop was conducted by the Officer of Motor Accident Claims Tribunal earlier. State Judicial Academy on 17th of September, 2009 in The 3rd Sessions was initiated by Mrs. Kaneez the Conference hall of Saddar Court, Srinagar on the Fatima, Presiding Officer, Motor Accident Claims topic of “Adjudication of Compensation cases under Tribunal, Srinagar. A healthy interaction took place Motor Vehicle Act”. All the Presiding Officers of in the workshop and participants showed a lot of Motor Accident Claims Tribunals of Kashmir enthusiasm in the discussion. Difficulties faced by the province except Leh, Kargil and Bandipora Presiding Officers of the Tribunal in expeditious and participated in the Workshop. effective disposal of Motor Accident Claims cases Workshop in Session Workshop in Session The workshop was conducted in three were aired in the workshop and remedial measures sessions. Session one pertained to “Production of also suggested. The participants were of the view that evidence, Quality of Evidence and Proof required in the bottlenecks in the speedy disposal of cases can be Motor Accident Claim cases”. Sessions 2nd pertained overcome if the procedure as established by law for to “Statutory defenses available to the Insurance trial and disposal of such cases is strictly adhered to. Companies and also to the Private Respondents”. It will be in place to mention here that Shri Sessions 3rd pertained to “Award of compensation Rajeev Gupta, Sub-Judge presently attached with including the grant of compensation as per the State Judicial Academy had some days before this structured formula and also the identification of workshop, been to the National Judicial Academy bottlenecks in the expeditious and effective disposal where he had collected some material regarding of Motor Accident Claim cases”. the trial and disposal of Motor Accident Claims Workshop in Session A view of Power Point Presentation Discussion in the Ist Session was initiated by Cases. He gave a Power Point presentation of the Shri Syed Javed Ahmed, Principal District & Sessions same in the Workshop which was highly appreciated Judge, Budgam in his capacity as Presiding Officer of by all present. Presentation in the form of compact Motor Accident Claims Tribunal, Budgam. discs were later on provided to all the participants Discussion in the 2nd session was initiated by Mrs. which will be of tremendous help to the Presiding 2 SJA Newsletter Officers of Motor Accident Claims Tribunal. The his land was sold by one of the accused to other by programme was by and large very successful. executing sale deed. When he confronted the accused to the sale deed so executed, they threatened him and LEGAL JOTTINGS insisted on taking forcible possession. Held : Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle (Cr. Appeal No. 634 of 2002 - Chikkarangaiah & civil disputes. But at the same time, it should be noted Ors. v. State of Karnataka with Cr. Appeal No. that several disputes of a civil nature may also contain 635 of 2002 State of Karnataka v. the ingredients of criminal offences and if so, will Chikkarangaiah & Ors. ) have to be tried as criminal offences, even if they also Date of Decision : 02-09-2009 amount to civil disputes. The averments in the Coram: Hon’ble Mr. Justice Dalveer Bhandari & complaint if assumed to be true, do not make out any Hon’ble Dr. Justice Mukundakam Sharma. offence under sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of Subject Index: Delay in filing FIR. It is true offences of wrongful restraint under section 341 and that in all cases the delay in transmitting the FIR and causing hurt under section 323 of IPC. its reaching the Magistrate late is not fatal to the prosecution. However, when there is some doubt with (Civil Appeal No. 2213 of 2001 - Charan Dass respect to the genesis of the complaint, the surest (Dead) by L.Rs. v. Himachal PradeshHousing & safeguard would be for the complaint to be received Urban Development Authority & Ors. with 23 by the Magistrate expeditiously especially in a case as other connected Civil Appeals.) grave as this. When there is considerable doubt on the Date of Decision: 07-09-2009. whereabouts of the informant, the delay in the FIR Coram: Hon’ble Mr. Justice D.K. Jain & Hon’ble reaching the Magistrate would have bearing on the Mr. Justice Asok Kumar Ganguly. veracity of the prosecution case. Subject Index: Land Acquisition Act Sections (Cr. Appeal No. 1199 of 2001 - State of U.P. v. 23 and 24. in the absence of sale deeds, the judgments Santosh Kumar) and awards passed in respect of acquisition of lands, Date of Decision : 03-09- 2009 made in the same village and/or neighbouring villages Coram: Hon’ble Mr. Justice Dalveer Bhandari & can be accepted as valid piece of evidence and provide Hon’ble Mr. Justice Harjit Singh Bedi. a sound basis to work out the market value of the land after suitable adjustments with regard to positive and Subject Index: Dying declaration. The basic negative factors enumerated in Sections 23 and 24 of consistency between the three dying the Act. Undoubtedly, an element of some guess work declarations given to three different persons is that the is involved in the entire exercise, yet the authority accused Santosh Kumar brought kerosene oil, poured charged with the duty to award compensation is the same on the deceased and set her on fire and she bound to make an estimate judged by an objective died because of the burn injury. It is the real genesis of standard. all the three dying declarations. It must be properly appreciated that the deceased gave these dying (Cr. Appeal No.1732 of 2009 arising out of S.L.P. declarations in a state when she was having acute pain (Crl.) No. 8565/2008 - Hazari Lal v. State of and minor inconsistencies in one dying declaration West Bengal & Anr. with another should not render the dying declarations Date of Decision: 8-9-2009 void. Dying declarations must be construed in proper Coram: Hon’ble Mr. Justice Tarun Chatterjee & perspective. Hon’ble Mr. Justice R.M. Lodha. (Cr. Appeal No.1695 of 2009 arising out of SLP Subject Index: Cancellation of bail. [Crl.] No.6211 of 2007 - Md. Ibrahim & Ors. v. Considerations for rejecting bail application and for State of Bihar & Anr.) cancellation of bail granted earlier are not the same. Date of Decision: 04-09-2009 Both of these have to be considered and dealt with on Coram: Hon’ble Mr. Justice R.V. Raveendran & different basis. Courts are required to keep in mind the Hon’ble Mr. Justice R. M. Lodha. considerations set out in “Dolat Ram & Ors. v. State of Haryana, (1995) 1 SCC 349”. Strong, cogent and Subject Index: Section 420, 467, 471 and 504 overwhelming circumstances are required for IPC. Complaint filed by the complainant alleging that cancellation of bail. SJA Newsletter 3 (Cr. Appeal No. 569 of 2003 - Saumindra Subject Index: Land Acquisition Act - Bhattacharya v. State of Bihar & Anr.) Sections 4, 5A and 6 - notification and declaration of land acquisition and exempted land - notification Date of Decision: 10-09-2009 issued - appellant filed objections under Section 5A Coram: Hon’ble Mr.