28 September, 2018

All Journalists and Media Persons to Carry Mobile Phones Inside Courtrooms in Supreme Court

The Supreme Court has decided to permit non-accredited journalists to carry mobile phones inside its court rooms.
As per a communication issued by Assistant Registrar Dr. Sushil Kr. Sharma, Chief Justice of India Dipak Misra has allowed the request, facilitating reporting by such media persons.
            








जानिये कैसे तय होता है कि लोक सभा में कौन सांसद कहाँ बैठेगा?: दीपक मिगलानी

      भारत की संसद के तीन अंग है|  लोक सभा, राज्य सभा और राष्ट्रपति. लोक सभा को हाउस ऑफ़ पीपल्स भी कहा जाता है|  आपने देख होगा कि संसद में बहस के दौरान विभिन्न दलों के सदस्य कुछ लाइन्स में बैठे दिखते हैं|  लेकिन क्या आप जानते हैं कि इन लोक सभा सदस्यों के बैठने के लिए भी कोई नियम होता है और कौन कहाँ बैठेगा इस बात का निर्णय करने के अधिकार लोक सभा के स्पीकर के पास होता है| आइये विडिओ  के माध्यम से जानते हैं कि लोक सभा में किस पार्टी का सदस्य कहाँ बैठेगा इस बात का निर्णय किस फ़ॉर्मूले के आधार पर होता है| 

07 February, 2018

02 February, 2018

Facts tending to enable court to determine amount are relevant

Section 12 of Indian Evidence act deals with  facts tending to enable court to determine amount are relevant in suit for damages.
Section 12  In suits for damages, facts tending to enable Court to determine amount are relevant –– In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded is relevant.
It also depends upon the principles of substantive law under which an action is brought.
For example facts which are relevant for awarding damages for defamation may not be relevant to damages for breach of contract.
In tort law the court takes into account the motive, malice and intention of the wrongdoer. Even the riches and ability of defendant to compensate play some part.
In the law of contract, on the other hand, the mode and manner of breach, the intention of the party committing the breach, his riches, mental pain and suffering caused by breach are all irrelevant to the question of damages.
In Shaikh Gafoor v. State of Maharashtra (2008),  the court said that difficulty in assessing damages was no ground to refuse award of damages. It is duty of the court to make an appropriate award. The court calculated damages according to the probable income that the damaged crops could have yield per acre.

----
Dr. Deepak Miglani
Email Id. :- legalbuddy@gmail.com






When facts not otherwise relevant become relevant

Section 11 of the Indian Evidence Act, 1872  deals with facts which ordinarily have nothing to do with that of a case are not in themself , but they have become to the relevant only by virtue of fact that they are either inconsistent with any fact in issue or relevant fact or they make the existence of a fact in issue or relevant fact either highly probable or improbable.

Section 11: When facts not otherwise relevant become relevant.–– Facts not otherwise relevant are relevant ––  
(1) if they are inconsistent with any fact in issue or relevant fact;  
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.  
Illustrations
 (a) The question is, whether A committed a crime at Calcutta on a certain day.  
The fact that, on that day, A was at Lahore is relevant.  
The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.  
The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by either B, C or D, is relevant.

Inconsistent Facts: Plea Alibi

This section enables a person charged with a crime to take what is commonly called the plea of alibi which means his presence elsewhere at the time of crime.
His present elsewhere is consistent with the facts that he should be present at place of the crime.
Where, for example, a person with charged with murder which took place at calcutta, he can take the defence that on the day in question he was in Bombay. In order to prove his presence in Bombay he may show his attendance at some place, for example the fact that he visited a doctor or a vakil and he noted his visit in a professional diary or that he posted a letter written by himself on that day from Bomaby, or that he encashed a cheque at Bombay.
In Munshi Prasad v. State of Bihar (2001) A distance of 400-500 yards between the place of occurrence and the place where the accused was claimed to be present (present in g panchkula meeting) was held to be not amounting to present elsewhere. It could not be an impossibility that  one could be present at both the place or less simultaneously.
The fact that the accused advanced a false plea of  alibi cannot by itself be a proof of the fact that he was responsible for the offence.[Govind v. State of M.P. (2005)]

Facts showing probabilities

Evidence can be given of every fact which by itself or in connection with other facts makes the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
For example there are five persons in a room and one of them is murdered in circumstances which show that it is the handiwork of any one or more of them. Evidence will be allowed of every fact which makes it probable which one of them caused the death or which one of them was probably  not connected with it.
Where a person is charged with cheating, evidence can be given of the fact that he belong to an organisation of habitual cheats as this would make it probable that the committed the crime- [Kalu Mirza v. Emperor (1909)]

Facts which makes thing highly improbable are also relevant

In Santa Singh v. State of Punjab (1956) The witnesses testified that they saw the deceased being shot from a distance of twenty-five feet. The medical report showed that the nature of the wound was such that it could have been caused only from distance less than a yard. Thus, the expert opinion rendered the statement of witnesses highly probable.
This section is too wide in its import. It does not place any restriction upon the range of facts that can be admitted as showing inconsistencies or probabilities.
It leaves the whole thing at the discretion of the court.
In Reg. v. Prabhudas (1874) where to prove the offence of forgery by the accused, evidence was offered of other forged documents found in his possession, as this would make it probable that he committed the forgery.
In Umashanker v. State of Chattisgarh (2001) in a charge of passing a fake currency note, the relevancy of possession of other fake note proved mens rea or guilty state of mind or knowledge.
--
Dr. Deepak Miglani
Email Id.:- legalbuddy@gmail.com

23 January, 2018

Arbitral Award(PPT)














For any query:-
Dr. Deepak Miglani
Email id.:- legalbuddy@gmail.com

Test Identification Parade


The purpose of TIP is to find out whether he is preparator of the crime.
This is necessary where the name of the offender is not mentioned by those who claim to be eyewitness of the incident, but they claim that although they did not know earlier, they could recall his features in sufficient details and would also be able to identify him if and when they happen to see him again.
It enables the investigating officer to ascertain whether the witnesses had really seen the preparator of crime and test their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit.
It is a workable way of  testing memory.
The evidence generated by TI parade is used for corroboration.
The purpose of TI parade is to test and strengthen trustworthiness of the evidence of the witness in the court.
In State (Delhi Adminisration) v. V.C. Shukala (1980) the Supreme Court laid down that the indentification accused by the witness for the first time in court without being tested by a prior test identification  parade was valueless.
The Supreme Court also held that where one of the witness failed to identify the accused at the identification parade, identification by him of the  accused in the court was useless.
Where the eyewitness stated in the F.I.R, that he could not identify the assailant, but even so he identified him at the T.I. parade, the Supreme Court held that such identification was a farce evidence.
Ordinarily the person who is supposed to have identified the assailants at the test identification parade must himself give evidence in regard to the identification.
In any even, the evidence in regard to the identification is at the most corroborative piece of evidence and can not remove the affirmities of the testimony itself.
The Supreme Court observed that evidence given by the witness in the court was substantive testimony while the indentification made by him at the parade was confirmatory of that fact.
Failure on the part of those who were injured in a mass attack to identify the assailants and the successful identification by persons who were injured in process was held to have made no difference to the quality of the evidence.
The hold of T.I. parade is not compulsory.
The failure to hold it is not fatal to the prosecution case where the accused persons were previously known to the witness and their name also appeared in the F.I.R.
Even where the accused demands T.I. parade, the prosecution is not bound to do so and its case will not be weakened by the mere absence of the parade.
Where the accused of day time robbery case refused to appear in parade though he was kept throughout under cover, he was not allowed to put a challenge to this identification in court.
Delay in holding
The delay in holding T.I. parade must be satisfactorily accounted for.
In Rajesh Govind v. State of Maharashtra (2000) , The explanation that no magistrate was available in Bombay for 5 weeks for supervising the parade was held to be not satisfactory.
In Murari Lal Jivan Ram Shama v. State of Maharashtra (1997), Two months delay was held to be sufficiently accounted for where the investigating officer did keep writing to the magistrate but the magistrate could not spare time earlier due to his preoccupations.
In Munna Kumar v. State of A.P. (2012) A photograph of accused appeared in newspapers . There was a long gap of time between such publication and holding of T.I. parade. The court said the fading of public memory must have taken place in the mean time. The publication could not be taken to have reduced the value of T.I. parade.
In Ravi v. State (2007) In the case of an F.I.R. against unknown persons, the Supreme Court said that T.I. parade should be held as early as possible. A conviction can not be based on a vague identification.
Where accused already known to witness
In Dana Yadav v. State of Bihar (2002) The Supreme Court observed that where the accused was already known to the witnesses , the holding of an identification parade would be waste of public time.
In State of Madhya Pradesh v. Chamru (2007) Photographs of the accused were shown to the child witnesses before the parade. The Supreme Court held that this took away the effect of the test identification parade.
If accused is well known by sight T.I. parade is not necessary.
Identification is not substantive evidence. It only assures the investigation agency of the fact it is proceeding on right lines.
Identification in Court
Identification of the accused by an eye witness in the court has been held to be substantive evidence.
The identification  through a parade is a primary evidence but not a substantive evidence. The same can be used to corroborate the identification of the accused in the court.
In Dana Yadav v. State of Bihar (2002) The accused in this case was not named in F.I.R. His identification in court was not  accepted by the Supreme Court as reliable evidence.
Identification for the first time in the court without any corroborative evidence should not form the basis of conviction unless there are exceptional circumstances to justify it.
In Oma v. State of T.N. (2014), in a dacoity case, the F.I.R. was lodged against unknown persons. T.I. was not held. Identification in court by a witness after 10 Years was held to be of doubtful validity.
In State of Haryana v. Surender (2007) , the injured eyewitness identified the accused in the court. T.I. parade could not be held because of refusal by accused to participate. The Supreme Court held that rejection of evidence of the eye-witness in the court without assigning any reasons was not proper.
----------------
--- Dr. Deepak Miglani
Email id. :- legalbuddy@gmail.com