Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sabina and Goverdhan Bardhar, JJ., while dismissing the appeal upheld the judgment passed by the trial court.

In the instant case, respondent Nafisa in her dying declaration stated that her husband Amin who is the appellant, in this case, used to beat her out of matrimonial home under the influence of liquor. On 14-08-2011 Amin under the influence of liquor gave beatings to her and poured kerosene oil on her and set her on fire around 8-9 pm. The children were sleeping at that time so she raised an alarm she was taken to the hospital by her neighbours. Meanwhile, the appellant fled away from the spot. Respondent’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Respondent died on 15-08-2011 at 3:30 am so the offence under Section 302 of the Penal Code, 1860 was added. 

During the investigation, appellant said he was falsely framed in this case and said his wife had prepared meals and had served to children and he had no knowledge of how the fire was caught. Moreover, he said he tried to extinguish the fire and suffered injuries on his hands and face. When children were examined they didn’t support prosecution case and said their father tried to extinguish fire. Medical examination of the appellant said he suffered burn injuries on his hands and forearm. Even the parents of the deceased also admitted that she never complained about her husband to them. 

Therefore, the question before Court was that the statement recorded as dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the magistrate the entire case should rest upon it.

The Court relied on the case Muthu Kutty v. State of T.N., (2005) 9 SCC 113 where Supreme Court laid down that though the dying declaration is of great value and importance, the accused is left with no power of cross-examination. The Court has to be on guard “that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination”. In another case of Munnu Raja v. State of M.P., (1976) 3 SCC 104, the Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

The Court opined that the dying declaration in this case was obtained by all legal means as it was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and the doctor deemed her fit to give statement and it was also signed by doctor and moreover no reason was established of her to such a thing in her death bed. The appellant neither took her wife to the hospital and nor was present in the hospital during the time of treatment. Moreover, the medical examination of the appellant happened on 28-09-2011 and the incident took place on 14-08-2011. Delay of so many days further questions the credibility of the medical report. This establishes guilt in the mind of appellant. [Amin v. State of Rajasthan, 2019 SCC OnLine Raj 3945, decided on 23-10-2019]

Case BriefsHigh Courts

Jharkhand High Court: The instant writ petition entertained by Sujit Narayan Prasad, J. was filed under Article 226 of the Constitution of India for quashing the Memo issued by the respondent whereby the water reservoirs in the urban area has been directed to be handed over in favor of the municipality.

The petitioner had contended that certain water reservoirs had been settled in favor of the petitioner for the year 2016-17 and in terms of the contract the petitioner carried out the fishing work in the aforesaid tanks but all of a sudden the impugned decision was taken on by which the tank was transferred in favor of the municipality therefore, the ground was raised that when the terms and conditions of the contract was in subsistence during the course when the impugned order was passed, the same cannot be done in the course of subsistence period of the contract, hence the impugned order was not sustainable in the eyes of law.

Counsel for the State-respondent Gautam Kumar, submitted that the impugned decision was taken in terms of the Cabinet decision which was issued by the appropriate authorities and the said Cabinet decision was taken in pursuance to the provision of Section 126 of the Jharkhand Municipal Act, 2011 wherein the provision was made about vesting of property which includes public tanks/reservoirs also, therefore, if the Cabinet took a decision to follow the statue and in terms thereof any decision which was taken, the same cannot be interfered with.

The Court observed that the tanks in question were settled in favor of the petitioner in the year 2016-17 by the order in that regard by the competent authority but in course of subsistence period of the contract the impugned decision was taken to transfer the tanks in favor of the municipality by taking aid of the decision by the State of Jharkhand. It further found no dispute about the settled position of law that if any Act has been acted upon, it was to be followed in its strict sense and there cannot be any deviation otherwise it will be said that the rule of law was not prevailing. It held, “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect.” Hence, the petition was dismissed.[Somath Haldar v. State of Jharkhand, 2019 SCC OnLine Jhar 683, decided on 13-06-2019]

Case BriefsHigh Courts

Madras High Court: A Bench of S.M. Subramaniam, J. while addressing a writ petition stated that “If a deity in a temple commits an act of encroachment, that is also to be dealt with, in accordance with law and because it is a deity, the Rule of Law cannot be diluted.”

The present writ petition was filed in regard to the removal of the unauthorised construction in the name of Vinayagar Temple in Revenue Divisional Office, Coimbatore.

For the above-stated concern, the High Court was of the opinion that various temples on public roads, Government Poramboke areas, Water bodies and Water resources are being constructed by few land mafias and greedy men for personal gains and for unlawful enrichments. The reason behind the construction of these temples at such places is either to grab land or personal unlawful enrichment. It has also been stated by the Court that these temples are constructed without obtaining the required permissions from the authorities concerned.

“Even Deity as a legal person, cannot commit an act of encroachment.”

Therefore, taking into consideration the issues as stated above, the High Court stated that, Temples, Churches, Mosques or any other religious institutions, if constructed by encroaching public roads causing inconvenience to vehicular traffic or if any constructed in water resources and water bodies, depriving the citizen to get water resources, then all to be dealt in accordance with law as stated earlier.

Thus the bench concluded the order by stating the need to implead the “State” as the party for consideration of issues appropriately. Learned counsels were requested to file counter affidavit and statistics regarding the existence of all such Temples, Churches, and Mosques in an encroached public land, Poramboke lands, water bodies, and water resources. Further, the matter was posted for 21-01-2019. [K. Ramakrishnan v. District Collector, 2019 SCC OnLine Mad 36, Order dated 04-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and N. Anil Kumar, JJ. allowed a petition challenging the obstruction caused by Auto Rickshaw Union of Irrity area to the driver who was stopped from plying his vehicle despite possession of a valid permit.

Petitioner, owner of a contract carriage (auto rickshaw) obtained a contract carriage permit to ply the said vehicle in the place mentioned therein, subject to the condition that he shall not park it or pick up passengers in it from/within the city. However, he was forcefully obstructed from parking the vehicle at Iritty by the Irrity Auto Rickshaw Union stating that the same could be done only by members of their Union. Petitioner’s representations to the police yielded no results which prompted him to file the instant petition contending that the actions of Irrity Auto Rickshaw Union were contrary to the provisions of law and his vested rights.

The Court held that in so far as the petitioner was plying the vehicle strictly in terms of contract carriage permit obtained by him, there could not be any forceful obstruction from any corner. The petition was disposed of opining that in case of any such obstruction, the same be brought to the notice of Sub Inspector of Police who was directed to intervene then and there and take appropriate remedial measures to abate the threat to the rule of law. [Sumesh M.G. v. District Collector, Collectorate, Kannur, 2018 SCC OnLine Ker 5795, decided on 20-12-2018]

Legislation UpdatesRules & Regulations

Under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000 use of loudspeakers/public address system is restricted in the following manner:

A) They can only be used after obtaining permission from any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer, not below the rank of the Deputy Superintendent of Police, designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force.

B) The loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within, e.g. auditoria, conference rooms, community halls and banquet halls.

C) The State Government may, subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year.

Further the Supreme Court of India has passed the following directions in Noise Pollution (V), In re, (2005) 5 SCC 733 at page 782:

1. The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower.

2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10.00 p.m. and 6 a.m.) except in public emergencies.

3. The peripheral noise level of privately-owned sound system shall not exceed by more than 5 dB(A) than the ambient air-quality standard specified for the area in which it is used, at the boundary of the private place.