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30 Jan 2011
This Writ Petition under Article 32 of the Constitution had been initially filed challenging the
constitutional validity of the Haj Committee Act 1959, but thereafter by an amendment
application the Haj Committee Act of 2002 which replaced the 1959 Act, has been
challenged.
The ground for challenge is that the said Act is violative of Articles 14, 15, and 27 of the
Constitution. The grievance of the petitioner is that he is a Hindu but he has to pay direct
and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is
only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the
interpreting the Constitution are to some extent different from those of interpreting an
ordinary statute vide judgment of Honble Sikri, J. in Kesavanand Bharati vs. State of
Kerala, 1973 (4) SCC 225 (vide para 15). The object of Article 27 is to maintain secularism,
and hence we must construe it from that angle.
As Lord Wright observed in James vs. Commonwealth of Australia, (1936) AC 578, a
Constitution is not to be interpreted in a narrow or pedantic manner (followed in re C.P. &
Berar Act, AIR 1939 F.C.I.).
This is because a Constitution is a constituent or organic statute, vide British Coal
Corporation vs. The King, AIR 1935 P.C. 158 and Kesavanand Bharati vs. State of Kerala,
1973 (4) SCC 225 (vide para 506). While a statute must ordinarily be construed as on the
day it was enacted, a Constitution cannot be construed in that manner, for it is intended to
endure for ages to come, as Chief Justice Marshal of the U.S. Supreme Court observed in
McCulloch vs. Maryland, 17 U.S. 316(1819) and by Mr. Justice Holmes in Missourie vs.
Holland, 252 U.S. 416(1920). Hence a strict construction cannot be given to it.
In our opinion Article 27 would be violated if a substantial part of the entire income
tax collected in India, or a substantial part of the entire central excise or the customs
duties or sales tax, or a substantial part of any other tax collected in India, were to be
utilized for promotion or maintenance of any particular religion or religious
denomination. In other words, suppose 25 per cent of the entire income tax collected
in India was utilized for promoting or maintaining any particular religion or religious
denomination, that, in our opinion, would be violative of Article 27 of the
Constitution.
However, the petitioner has not made any averment in his Writ Petition that a substantial
part of any tax collected in India is utilized for the purpose of Haj. All that has been said in
paragraph 5 (i) and (ii) of the Writ Petition is :(i) That the respondent herein has been imposing and collecting various kinds
of direct and indirect taxes from the petitioner and other citizens of the
country.
(ii) That a part of the taxes so collected have been utilized for various
purposes including promotion and maintenance of a particular religion and
religious institutions.
Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax
has been utilized for the purpose of the Haj pilgrimage. The allegation in para 5(ii) of the
Writ Petition is very vague. In our opinion, if only a relatively small part of any tax collected is
utilized for providing some conveniences or facilities or concessions to any religious
denomination, that would not be violative of Article 27 of the Constitution. It is only when a
substantial part of the tax is utilized for any particular religion that Article 27 would be
violated.
As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the
Central Government, the State Government incurs some expenditure for the Kumbh
Mela, the Central Government incurs expenditure for facilitating Indian citizens to go
on pilgrimage to Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is
mentioned that some State Governments provide facilities to Hindu and Sikh pilgrims
to visit Temples and Gurudwaras in Pakistan. These are very small expenditures in
proportion to the entire tax collected.
Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is
not averse to the idea of granting support to the pilgrimage conducted by any community.
In our opinion, we must not be too rigid in these matters, and must give some free
play to the joints of the State machinery. A balanced view has to be taken here, and
we cannot say that even if one paisa of Government money is spent for a particular
religion there will be violation of Article 27.
As observed by Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in
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Bain Peanut Co. vs. Pinson, 282 U.S. 499, 501 (1931) The interpretation of constitutional
principles must not be too literal. We must remember that the machinery of the government
would not work if it were not allowed a little play in its joints (see also Missourie, Kansas
and Tennessee Railroad vs. May, 194 U.S. 267 (1904). Hence, in our opinion, there is no
violation of Article 27 of the Constitution.
There is also no violation of Articles 14 and 15 because facilities are also given, and
expenditures incurred, by the Central and State Governments in India for other
religions. Thus there is no discrimination.
In Transport & Dock Workers Union vs. Mumbai Port Trust, 2010(12) Scale 217 this Court
observed that Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. It is not
prudent or pragmatic for the Court to insist on absolute equality when there are diverse
situations and contingencies, as in the present case (vide paragraphs 39 and 43).
Apart from the above, we have held in Government of Andhra Pradesh vs. P. Laxmi Devi,
AIR 2008 SC 1640 that Court should exercise great restraint when deciding the
constitutionality of a statute, and every effort should be made to uphold its validity.
Parliament has the legislative competence to enact the Haj Committee Act in view of entry
20 to List 1 of the Seventh Schedule to the Constitution which states:
Pilgrimages to places outside India.
Thus there is no force in this petition and it is dismissed. Before parting with this case we
would like to mention that India is a country of tremendous diversity, which is due to
the fact that it is broadly a country of immigrants (like North America) as explained in
detail by us in Kailas & Others vs. State of Maharashtra, JT 2011 (1) 19. As observed in
paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely
essential if we wish to keep our country united to have tolerance and equal respect for all
communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh
vs. Mirzapur Moti Kuresh Jamaat, AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to
the wisdom of our founding fathers that we have a Constitution which is secular in character,
and which caters to the tremendous diversity in our country.
It may be mentioned that when India became independent in 1947 there were partition
riots in many parts of the sub-continent, and a large number of people were killed,
injured and displaced. Religious passions were inflamed at that time, and when
passions are inflamed it is difficult to keep a cool head. It is the greatness of our
founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a
cool head and decided to declare India a secular country instead of a Hindu country.
This was a very difficult decision at that time because Pakistan had declared itself an
Islamic State and hence there must have been tremendous pressure on Pandit
Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness
that they resisted this pressure and kept a cool head and rightly declared India to be
a secular state.
This is why despite all its tremendous diversity India is still united. In this subcontinent, with all its tremendous diversity (because 92 per cent of the people living
in the sub continent are descendants of immigrants) the only policy which can work
and provide for stability and progress is secularism and giving equal respect to all
communities, sects, denominations, etc.
Have a look at the decision.
28 Jan 2011
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The Supreme Court explained the law to this regard in State of Maharashtra v. Abu Salem Abdul
Kayyum Ansari inter alia in the following terms;
entire circumstances within his knowledge relative to the crime. Section 307 vests the
court to which the commitment is made, with power to tender a pardon to an accomplice.
The expression, on the same condition occurring in Section 307, obviously refers to the
condition indicated in sub-section (1) of Section 306, namely, on the accused making a full
and true disclosure of the whole of the circumstances within his knowledge relative to the
offence and to every other person concerned, whether as principal or abettor, in the
commission thereof. An accomplice who has been granted pardon under Section 306
or 307 Cr.P.C. gets protection from prosecution. When he is called as a witness for
the prosecution, he must comply with the condition of making a full and true
disclosure of the whole of the circumstances within his knowledge concerning the
offence and to every other person concerned, whether as principal or abettor, in the
commission thereof and if he suppresses anything material and essential within his
knowledge concerning the commission of crime or fails or refuses to comply with the
condition on which the tender was made and the Public Prosecutor gives his
certificate under Section 308 Cr.P.C. to that effect, the protection given to him is
lifted.
14. In A.J. Peiris v. State of Madras, a 3 - Judge Bench of this Court stated that the moment
a pardon is tendered to the accused he must be presumed to have been discharged,
whereupon he ceases to be an accused and becomes a witness.
15. In State v. Hiralal Girdharilal Kothari, with reference to Sections 337 and 339 of the
Code of Criminal Procedure, 1898 (now Sections 306, 307 and 308 Cr.P.C.), this Court
stated that a pardon tendered under Section 337 is a protection from prosecution; failure to
comply with the condition on which the pardon is tendered removes that protection.
16. In State (Delhi Administration) v. Jagjit Singh, this Court held as under:8. The power to grant pardon carries with it the right to impose a
condition limiting the operation of such a pardon. Hence a pardoning power
can attach any condition, precedent or subsequent so long as it is not
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evidence given by him, if any, has to be ignored in toto and does not remain legal
evidence for consideration in the trial against the co-accused, albeit such evidence
may be used against him in the separate trial where he gets an opportunity to show
that he complied with the condition of pardon. As a matter of fact, it is for this reason
that a specific statement was made by the counsel for the State of Maharashtra before us
a similar statement was made before the Designated Court as well that the evidence of
respondent no. 3 so far recorded shall not be used by the prosecution in the present trial.
18. Section 114, illustration (b) of the Indian Evidence Act, 1872 (for short, Evidence Act)
provides that the Court may presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars.
19. Section 132 of the Evidence Act reads as follows:
132. Witness not excused from answering on ground that answer will
criminate - A witness shall not be excused from answering any question as to
any matter relevant to the matter in issue in any suit or in any civil or criminal
proceeding, upon the ground that the answer to such question will criminate,
or may tend directly or indirectly to criminate, such witness, or that it will
expose, or tend directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind:
Proviso - Provided that no such answer, which a witness shall be compelled to
give, shall subject him to any arrest or prosecution, or be proved against him
in any criminal proceeding, except a prosecution for giving false evidence by
such answer.
20. Section 133 of the Evidence Act provides that an accomplice shall be a competent
witness against an accused person; and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice.
21. Section 154 of the Evidence Act is as under:
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S.-154. Question by party to his own witness.- (1) The Court may, in its
discretion, permit the person who calls a witness to put any question to him
which might be put in cross examination by the adverse party.
2. Nothing in this section shall disentitle the person so permitted under subsection (1), to rely on any part of the evidence of such witness.
22. Section 315 of Cr.P.C. makes an accused person a competent witness for the defence
and he may voluntarily give evidence on oath in disproof of the charges made against him or
any person charged together with him at the same trial. The said provision reads as follows:
S.-315. Accused person to be competent witness - (1) Any person accused of
an offence before a Criminal Court shall be a competent witness for the
defence and may give evidence on oath in disproof of the charges made
against him or any person charged together with him at the same trial:
Provided that(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment
by any of the parties or the court or give rise to any presumption against
himself or any person charged together with him at the same trial.
(2) Any person against whom proceedings are instituted in any Criminal Court
under section 98, or section 107, or section 108, or section 109, or section
110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may
offer himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110,
the failure of such person to give evidence shall not be made the subject or
any comment by any of the parties or the court or give rise to any presumption
against him or any other person proceeded against together with him at the
same inquiry.
In other words, Section 315 clearly lays down that an accused cannot be compelled to give
evidence except on his own request in writing.
23. Article 20(3) of the Constitution protects an accused from being called or compelled to
be witness against himself.
24. We have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and
Constitution to indicate that none of these provisions militates against the
proposition that a pardon granted to an accomplice under Section 306 or 307 Cr.P.C.
protects him from prosecution and he becomes witness for prosecution but on
forfeiture of such pardon, he is relegated to the position of an accused and his
evidence is rendered useless for the purposes of the trial of the accused. He cannot
be compelled to be a witness. There is no question of such person being further
examined for the prosecution and, therefore, no occasion arises for the defence to
cross examine him. The Designated Court seriously erred in treating the respondent no. 3
(Riyaz Ahmed Siddique) hostile witness; it failed to consider that the pardon granted and
accepted by him was conditional pardon inasmuch as it was on the condition of his making a
true and full disclosure of all the facts concerning the commission of crime and once the
pardon granted to him stood forfeited, on the certificate issued by the Special Public
Prosecutor, he was relegated to the position of an accused and did not remain a witness. In
the circumstances, there was no justification to permit the defence to cross examine the
respondent no. 3 and to that extent the impugned order cannot be sustained.
Have a look at the decision.
The High Court enunciated the law on this aspect in the following terms;
4. The plaintiff has sought an injunction restraining the defendants from using or squatting
from the trademark or domain name indiatimestravel.com or operating any business or
selling, offering for sale, advertising and/or deal in any manner in service or goods using the
trademark/domain name indiatimestravel.com or any other identical or deceptively similar
name. An injunction has also been sought seeking direction for transfer of the domain name
indiatimestravel.com to the plaintiff. Damages amounting to `20Lacs have been also
sought by the plaintiff from defendants No.1 and 2. It has also sought delivery up of all
materials/documents in their possession bearing the mark/name indiatimestravel.com or
any other deceptively similar mark.
xxx
10. In CS(OS) No.1108/2006, decided on 29th October, 2010, this Court, inter alia, held as
under:
18. A person is well within his right to sell his goods or render services using
any trade name for the purpose. With the passage of time the goods sold or
the services rendered by him, as the case may be, may acquire certain
reputation or goodwill in the market which becomes the property of that
person and needs to be protected by the court. It is not permissible for any
other person to start selling goods or rendering services either using the same
name or imitating that name so as to cause injury to that person and enrich
himself at the cost of the person who had already been using that name and
had acquired a certain reputation with the passage of time and on account of
the quality of the goods sold or services rendered by him. Any attempt on the
part of a person to enrich upon the goodwill generated by any other person
needs to be curbed by the court whenever approached by the aggrieved party
in this regard.
19. Even if the person using or imitating the trade mark or goodwill of another person
is yet to commence his business activities his dishonest intention to make use of the
mark and name of the other party will be obvious from the very use or imitation of the
mark and goodwill of the other person and, therefore, it should not be a defence to
say that there has so far been no use of the offending corporate name or mark.
Though the aforesaid observations were made in respect of a registered trade mark,
they would equally apply in a case of passing off.
11. In Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 573, the
Supreme Court, inter alia, observed that its decisions in the last four decades had clearly
laid down that what had to be seen in the case of a passing off action was the similarity
between the competing marks and to determine whether there was likelihood of deception
or causing confusion.
12. In Satyam Infoway Ltd. vs. Sifynet Solutions Pvt. Ltd. 2004 (28) PTC 566 (SC), the
appellant registered several domain names like www.sifynet, www.sifymall.com, www.
sifyrealestate.com etc. 'Sify' was a coined word of the appellant which claimed a vital
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reputation and goodwill in that name. The respondent, at a later dated, started carrying on
business of internet marketing under the domain names www.siffynet.net and www.siffynet.
com and also obtained registration of these two domain names with Internet Corporation for
Assigned Names and Numbers (ICANN). Coming to know of it, the appellant filed a Civil
Suit against the responding claiming that the respondent was passing off its business and
services by using the appellants" business name and domain name. The City Civil Court
Judge allowed the application of the appellant for grant of injunction, noticing that the
appellant was the prior user of the trade name "Sify" which had earned good reputation in
connection with Internet and computer services and that the respondent domain names
were similar to the domain name of the appellant and confusion will be caused in the mind
of general public by such deceptive similarity. The High Court, however, set aside the order
passed by the City Civil Court. Allowing the appeal, the Supreme Court, inter alia, observed
as under:11. The original role of a domain name was no doubt to provide an
address for computers on the internet. But the internet has developed
from a mere means of communication to a mode of carrying on
commercial activity. With the increase of commercial activity on the
internet, a domain name is also used as a business identifier. Therefore,
the domain name not only serves as an address for internet
communication but also identifies the specific internet site. In the
commercial field, each domain name owner provides information/
services which are associated with such domain name. Thus a domain
name may pertain to provision of services within the meaning of Section
2(z). A domain name is easy to remember and use, and is chosen as an
instrument of commercial enterprise not only because it facilitates the
ability of consumers to navigate the Internet to find websites they are
looking for, but also at the same time, serves to identify and distinguish
the business itself, or its goods or services, and to specify its
corresponding online Internet location. Consequently a domain name as
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name Indiatimestravels.com was created on 21st July, 2005 and its registration on the
domain name was to expire on 21st July, 2008. Thus, not only did the plaintiff create the
mark Indiatimes.com, it has also been extensively using that mark since much prior to the
dated on which the mark indiatimestravel.com was got registered by defendant No.1 as a
domain name. The word indiatimes is an essential feature of the trademark created and
being used by the plaintiff and/or its predecessor Bennett and Coleman and Company since
22nd November, 1996. No one else is entitled in law, to use any mark which adopts and
incorporates this essential feature of the mark of the plaintiff. It can hardly be disputed
that the words indiatimes are an essential component of the domain name
indiatimestravel.com got registered by defendant No.1 with defendant No.2.
Defendant No.1 has not come forward to tell the Court as to what prompted it to use a
mark, which includes the words indiatimes as its essential component and get it
registered as a domain name with defendant No.2. Hence, I see no reason to reject
the case of the plaintiff that the domain name indiatimestravel.com has been got
registered by defendant No.1 and is being used by it only with a view to encash upon
the reputation and image built around the mark indiatimes, coined by predecessor
of the plaintiff. The plaintiff has incurred huge expenditure, as detailed in para 6 of the
affidavit of Shri C.V. Dhawan, between 1988-89 to 2006-07, on development, designing and
maintenance of its portal and the products & services being offered through it. There is a
strong possibility of the person, seeking to buy a product or a service on the web portal of
the plaintiff getting confused on account of similarity of names in the domain name of the
plaintiff-company and the domain name adopted by defendant No.1, on account of use of
the word indiatimes in both the marks and, therefore, clicking on the web portal of
defendant No.1 on the assumption and under a bona fide belief that he was clicking on a
website of the plaintiff-company. He may also believe that since the word indiatimes has
been used as an essential component of the web name adopted by defendant No.1, that
web name was also somehow associated with the plaintiff-company and consequently he
may click on the web portal of defendant No.1, thereby bringing revenues to it, since mere
clicking on the web portal of defendant No.1 generates revenue for that company. The use
of the web name indiatimestravel.com is, therefore, likely to result in confusion in the mind
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of web user on account of deceptive similarity in the web name indiatimes and
indiatimestravel.com on account of the words indiatimes being an essential feature of
both the web names. If the products and services which are advertised on the web portal of
defendant No.1 are not as good as the products and services advertised on the web portal
of plaintiff-company, considering that the name indiatimes has come to be associated with
the plaintiff-company on account of its extensive use and the expenses incurred on
promoting and building this name, use of the impugned web name by defendant No.1 may
also result in lowering the reputation and image of the plaintiff-company amongst the web
users. It appears that by using the web name indiatimestravel.com, defendant No.1
wants to take undue advantage of the huge expenditure incurred by the plaintiffcompany and its predecessor on building and promoting the name indiatimes. As
noted earlier, defendant No.1 having not chosen not to appear before this Court, there is no
escape from the conclusion that the web name got registered by defendant No.1 was got
registered by it with an ulterior motive and was not in good faith.
14. When questioned as to how the plaintiff can ensure compliance in case the injunctions,
as sought by the plaintiff, is granted to it, the learned counsel for the plaintiff referred to
Uniform Domain Name Dispute Resolution Policy of defendant No.2 which, inter alia,
provides as under:
3. Cancellations, Transfers, and Changes. We will cancel, transfer or
otherwise make changes to domain name registrations under the following
circumstances.
(a) subject to the provisions of paragraphs 8, our receipt of
written or appropriate electronic instructions from you or your
authorized agent to take such action;
(b) our receipt of an order from a court or arbitral tribunal, in
each case of competent jurisdiction, requiring such action; and /
or
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25 Jan 2011
Justice Shiv Narayan Dhingra of the Delhi High Court, quashing the criminal charges for having
"conducted a sting operation to expose the practice prevalent amongst some of the Members of
Parliament of taking money for asking question in the Parliament", opined as under;
6. The question that arises in these petitions is whether a citizen of this country has a right
to conduct such sting operation to expose the corruption by using agent provocateurs and to
bring to the knowledge of common man, corruption at high strata of society.
7. The Constitution [Part-IVA] lays down certain fundamental duties for the citizens of this
country and Article 51A(b) provides that it is the duty of every citizen of India to cherish and
follow the noble ideals which inspired our national struggle for freedom. I consider that one
of the noble ideals of our national struggle for freedom was to have an independent and
corruption free India. The other duties assigned to the citizen by the Constitution is to uphold
and protect the sovereignty, unity and integrity of India and I consider that sovereignty, unity
and integrity of this country cannot be protected and safeguarded if the corruption is not
removed from this country. Another duty of every citizen is to defend the country and render
national service when called upon to do so. I consider that a country cannot be defended
only by taking a gun and going to border at the time of war. The country is to be defended
day in and day out by being vigil and alert to the needs and requirements of the
country and to bring forth the corruption at higher level. The duty under Article 51A(h)
is to develop a spirit of inquiry and reforms. The duty of a citizen under Article 51A(j) is to
strive towards excellence in all spheres so that the national constantly rises to higher level of
endeavour and achievements I consider that it is built-in duties that every citizen must
strive for a corruption free society and must expose the corruption whenever it
comes to his or her knowledge and try to remove corruption at all levels more so at
higher levels of management of the State.
8. This Court can take judicial notice of the fact that of widespread corruption on a large
scale which was unheard of before was now a common place. In 1988 (2) SCC 602
(Antulays case), Justice Sabyasachi Mukharji observed as under:
Values in public life and perspective of these values in public life, have
undergone serious changes and erosion during the last few decades. What
was unheard of before is common place today. A new value orientation is
being undergone in our life and in our culture. We are at the threshold of the
cross-roads of values. It is, for the sovereign people of the country to settle
those conflicts yet the Courts have vital roles to play in such matters.
These observations were made in 1988. Situation today is much worse.
9. I consider that it is a fundamental right of citizens of this country to have a clean
incorruptible judiciary, legislature, executive and other organs and in order to achieve this
fundamental right, every citizen has a corresponding duty to expose corruption
wherever he finds it, whenever he finds it and to expose it if possible with proof so
that even if the State machinery does not act and does not take action against the
corrupt people when time comes people are able to take action either by rejecting
them as their representatives or by compelling the State by public awareness to take
action against them.
10. This Court had considered as to whether a person making complaint regarding
corruption can be considered as an accomplice or not in State v P.K. Jain and another 2007
Crl. L. J 4137 and observed as under:
10. I consider that observations of learned A.S.J brandishing the complainant
in a trap case as accomplice amounts to discrediting the criminal justice
system itself and portrays that the criminal justice system cannot respect the
witnesses. This country is facing unprecedented rise in corruption.
Situation has come to a stage that MCD officials, due to the corrupt
practices, have turned the whole city into a slum by allowing all types of
unauthorized construction, encroachment, squatting over public land.
Engineers of local body who were supposed to check the unauthorized
construction and encroachment of the public land, encroachment of
roads, encroachment of pavements, turn a blind eye to all this, since
their pockets are warmed and palms are greased. Similarly the observation
of the trial Court that complainant and his son are interested witnesses and
not trust worthy, is unfortunate. In case of a legitimate trap, the persons and
police officials taking part in trap, in no sense can be said to be accomplice or
un-credit worthy witnesses so that their evidence would require, under law to
be corroborated by independent witness. The rule of corroboration is not a
rule of law. It is only a rule of prudence and the sole purpose of this rule is to
see that innocent persons are not unnecessarily made victim. The rule cannot
be allowed to be a shield for corrupt. Moreover, the corroboration need not be
by direct oral evidence and can be gathered from circumstantial evidence. The
sole evidence of a complainant is sufficient to convict a person, if it is reliable,
acceptable and trust worthy. There was a stage under our criminal justice
really had been interested, the police would have registered FIR on the very next day of
airing of the tapes on TV channels. The police seem to have acted again as his masters
voice of the persons in power, when it registered an FIR only against the middlemen and
the petitioners and one or two other persons sparing large number of MPs whose names
were figured out in the tapes.
13. The corruption in this country has now taken deep roots. Chanakaya in his
famous work Arthshastra advised and suggested that honesty of even judges
should be periodically tested by the agent provocateurs. I consider that the duties
prescribed by the Constitution of India for the citizens of this country do permit
citizens to act as agent provocateurs to bring out and expose and uproot the
corruption.
14. The prosecution in this case before filing charge-sheet was obliged to see as to what
was the role and intention of the petitioners. The intention of the petitioners was made clear
to the prosecution by airing of the tapes on TV channels and then by deposing truthfully
before the two Committees of Parliament. The two committees of Parliament did not doubt
the genuineness of the tapes or the intention of the petitioners. Under these circumstances,
charging the petitioners with the offence under Prevention of Corruption Act would amount
to travesty of justice and shall discourage the people of this country from performing their
duties enjoined upon them by the Constitution of India as well as Criminal Procedure Code.
Have a look at the decision.
On this blog we had earlier reported the decision of the Supreme Court in Selvi v. State of
Karnataka wherein the Court had refused to allow narcotic analysis and use of truth-serum against
the accused in according to the Court it violated the Right against self-incrimination available to all
citizens in terms of Article 20(3) of the Constitution of India. In a recent decision, the Supreme
Court however has delineated the limitations of this provision in much as it declared that this right is
not available to a person to avoid answering questions in a matter where he has not been charged
for an offence.
Called upon to decide the question as to "whether protection under Article 20(3) of the Constitution
is available to the appellant, who though not an accused in the police case in which he has been
asked to depose as a witness but figures as an accused in the complaint case filed later on in
relation to the same incident", the Supreme Court in Balasaheb v. State of Maharashtra declared
the law in the following terms;
5. ... Protection under Article 20(3) of the Constitution does not extend to any kind of
evidence but only to self-incriminating statements relating to the charges brought against an
accused. In order to bring the testimony of an accused within the prohibition of constitutional
protection, it must be of such character that by itself it tend to incriminate the accused.
Appellant is not an accused in the Police case and in fact a witness, whose statement was
recorded under Article 161 of the Criminal Procedure Code, and, therefore, not entitled to a
blanket protection. However, in case of trial in the Police case answer to certain question if
tends to incriminate the appellant he can seek protection at that stage. Whether answer to a
question is incriminating or otherwise has to be considered at the time it is put. Reference in
this connection can be made to a decision of this Court in the case of State of Bombay vs.
Kathi Kalu Oghad, AIR 1961 SC 1808, wherein it has been held as follows:
In order that a testimony by an accused person may be said to have been
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...
9. As observed earlier the appellant is not an accused in the Police case and in fact a
witness whose statement was recorded during the course of investigation under Section 161
of the Code of Criminal Procedure. In the Police case he utmost can be asked to support the
case of the prosecution but no question intented to incriminate him can be asked and in
case it is done the protection under Article 20(3) of the Constitution shall spring into action.
What question shall be put to this appellant when he appears as a witness is a matter of
guess and on that basis he does not deserve the blanket protection under Article 20(3) of
the Constitution. Even at the cost of the repetition we may observe that in the Police case
when he appears and asked to answer question, the answer whereof tends to incriminate
him, he can refuse to answer the same pleading protection under Article 20(3) of the
Constitution. In such eventuality the Court would decide the same. Therefore, at this stage
the blanket protection sought by the appellant is not fit to be granted.
10. As regards the authority of this Court in the case of Nandini Satpathy (supra) the same
has no bearing in the facts and circumstances of this case. There the question was as to
whether the protection under Article 20(3) of the Constitution shall apply at the stage of
Police interrogation and in answer thereto this Court held that it shall go back to the stage of
Police interrogation and not in Court only.
Have a look at the decision.
24 Jan 2011
17. In the judgment impugned herein, the High Court held that our Constitution never
contemplated equality in the value of vote in view of the several other provisions of the
Constitution. Supporting the judgment, the learned Solicitor General of India drew the
attention of this Court to the various provisions of the Constitution of India namely, Articles
81, 82 and 170. The learned Solicitor General also referred to a decision of the Constitution
Bench of this Court in R. C. Poudyal and others vs. Union of India and others, (1994)
Supp 1 SCC 324, wherein this Court examined Article 170 (2) while dealing with the
reservation of 12 seats for Sikkimese of Bhutia-Lepcha origin in the State of Sikkim. One of
the main questions which were raised in that case is as follows:
Whether Section 7(1-A) and Section 25-A of the Representation of the
People Act, 1950 [as inserted by Election Laws (Extension to Sikkim) Act,
1976 and Representation of the People (Amendment) Act, 1980 respectively]
and section 5-A (2) of the Representation of the People Act, 1951 [as inserted
by the Representation of the People (Amendment) Act, 1980] providing for
reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in
favour of Bhutias-Lepchas, are unconstitutional as violative of the basic
features of democracy and republicanism under the Indian
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(s) Independence of the judiciary; but within the four corners of the
Constitution and not beyond that.
(t) Independent and efficient judicial system.
(u) Powers of the Supreme Court under Arts. 32, 136, 141, 142.
(v) Effective access to justice. (see page 2236-2238)
30. Of these features free and fair election in Clause (r) comes closest with the question
discussed in this case.
31. This Court has already held relying on the Constitution Bench judgment in Poudyal
(supra) that ensuring uniformity in the value of votes is not a constitutionally
mandated imperative of free and fair election under our constitutional dispensation.
Therefore, the argument on the question of Basic Structure is also without substance and is
rejected.
Have a look at the decision.
Kanta v. J.M. Kohli] revisited the law on the issue to affirm the decision of the trial court. The High
Court referred to the decisions of the Supreme Court to hold that the concept had received
extensive enunciation to be fairly settled in the context of the Indian law.
The High Court observed the position the law on this aspect in the following terms;
9. The appellant has filed the present appeal on the ground that the findings of the learned
trial court with regard to desertion are perverse. The question as to what precisely
constitutes desertion has been elaborately discussed in a catena of judgments of the
Honble Supreme Court as well as various High Courts and also in several English cases.
Desertion in a sense means the intentional permanent abandonment of a spouse by the
other, without consent and without reasonable cause. It is a settled legal position that
desertion is not a physical withdrawal from a place, but from a state of things, from which
one can easily draw a conclusion that it is not a physical separation alone but there is a
complete withdrawal on the part of the deserting spouse to bring cohabitation permanently
to an end between them. The learned trial court referred to the judgment of the Apex Court
in Bipin Chanders case (Supra) where the concept of desertion has been defined in the
following words:
"For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, namely (1) the
factum of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly two elements are
essential so far as the deserted spouse is concerned: (1) the absence of
consent, and (2) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burden of proving those
elements in the two spouses respectively.
10. The above legal position was reiterated by the Apex Court in the Constitution Bench
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decision in Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 and
other subsequent judgments. Hence to establish desertion the two essential elements to be
proved by the petitioner are the factum of separation and animus deserendi. xxx
11. xxx It is a settled legal position that the factum of separation and animus deserendi are
not to always co exist and that the animus can be inferred from the subsequent conduct of
the deserting spouse. Here it would be pertinent to refer to the judgment of the Apex Court
in the case of Bipin Chander (supra) where it was held that:
Desertion is a matter of inference to be drawn from the facts and
circumstances of each case. The inference may be drawn from certain facts
which may not in another case be capable of leading to the same inference;
that is to say, the facts have to be viewed as to the purpose which is revealed
by those acts or by conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If, in fact, there has been a
separation the essential question always is whether that act could be
attributable to an animus deserendi. The offence of desertion commences
when the fact of separation and the animus deserendi co-exist. But it is not
necessary that they should commence at the same time. The de facto
separation may have commenced without the necessary animus deserendi
coincide in point of time.
Therefore, though the parties separated on 24.12.1979 temporarily but the animus for
bringing the cohabitation to end was later developed and can be inferred from the
subsequent events in the present case as the appellant made no efforts for reconciliation or
did any act to restore the wrecked relationship. Also in the case of Savitri Pandey vs. Prem
Chandra Pandey (2002) 2 SCC 73 after referring to judgments in Bipin Chander and
Lachman Utamchand, the Apex Court held that :
8. "Desertion", for the purpose of seeking divorce under the Act, means the
intentional permanent forsaking and abandonment of one spouse by the other
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without that other's consent and without reasonable cause. In other words it is
a total repudiation of the obligations of marriage. Desertion is not the
withdrawal from a place but from a state of things. Desertion, therefore,
means withdrawing from the matrimonial obligations, ie.., not permitting of
allowing and facilitating the cohabitation between the parties. The proof
desertion has to be considered by taking into consideration the concept of
marriage which in law legalises the sexual relationship between man and
woman in the society for the perpetuation of race, permitting lawful indulgence
in passion to prevent licentiousness and procreation of children. Desertion is
not a single act complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case.
12. Clearly in the present case, the appellant is the deserting spouse and her intention can
be inferred from her conduct. The very fact that the appellant did not make any efforts to
restore the matrimonial relations would show that she did not want to live with the
respondent husband after she separated from him temporarily and hence that lent an
element of permanence to the temporary separation. xxx
13. xxx Paradoxically, however both the events, that is opening of the bank account and
attending the Kriya ceremony go on to show that the respondent was fulfilling his duties as a
husband and was still willing to live with the appellant and their daughter but it is the
appellant who did not respond to his efforts. Here it would be useful to refer to the judgment
of the Apex Court in the case of Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi
(2002) 1 SCC 308 where it was held that :
The clause lays down the rule that desertion to amount to a matrimonial
offence must be for a continuous period of not less than two years
immediately proceeding the presentation of the petition. This clause has to be
read with the Explanation. The Explanation has widened the definition of
desertion to include 'willful neglect' of the petitioning spouse by the
respondent. It status that to amount to a matrimonial offence desertion must
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be without reasonable cause and without the consent or against the wish of
the petitioner. From the Explanation it is abundantly clear that the legislature
intended to give to the expression a wide import which includes willful neglect
of the petitioner by the other party to the marriage.
Hence, it would be clear from the law settled by the Apex Court that the explanation to
Section 13 talks about willful neglect of the petitioner by the respondent in case of desertion.
In the present case as well the appellant never bothered about the whereabouts of the
respondent husband and hence such conduct of the appellant further strengthens the case
of the respondent to claim divorce on the ground of desertion.
14. The court in the case of Adhyatma Bhattar (supra) further observed:
11. This Court in the case of Smt. Rohini Kumari v. Narendra Singh,: [1972]
2SCR657 , while considering the case of judicial separation on the ground of
desertion under Section 10(1)(a) of the Act read with the Explanation, held:
"...The two elements present on the side of the deserted spouse
should be absence of consent and absence of conduct
reasonably causing the deserting spouse to form his or her
intention to bring cohabitation to an end. The requirement that
the deserting spouse must intend to bring cohabitation to an end
must be understood to be subject to the qualification that if
without just cause or excuse a man persists in doing things
which he knows his wife probably will not tolerate and which no
ordinary woman would tolerate and then she leaves, he has
deserted her whatever his desire or intention may have been.
The doctrine of "constructive desertion" is discussed at page
229. It is stated that desertion is not to be tested by merely
ascertaining which party left the matrimonial home first. If one
future plans. But more often the situation arises, like in the present case, that the grueling
litigative voyage leaves the parties helpless and hapless. The vicious circle of litigation has
contributed to the demise of their hopes, promises and dreams. This case has indeed left
me with a bitter aftertaste.
Have a look at the decision.
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