Relevant paragraphs: 19. A plain reading of the provisions of Order XII Rule 6 of the Code of Civil Procedure clearly depicts that where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admission. Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
20. The provisions of Order XII Rule 6 of the Code of Civil Procedure clearly indicates the admission made by the defendants has to be without waiting for determination of any other questions between the parties.
22. Janardhan Jog vs. Srikrishna reported in ILR 1989 KAR 1895 an admission contemplated by Order XII Rule 6 of the Code of Civil Procedure, has to be an absolute admission, capable of being worked out by itself. The other questions to be determined in the suit, on decree being made under Order XII Rule 6, should be such independent questions, reliefs granted on which should be capable of being granted without affecting the former decree (i.e, the one passed on the basis of admission). If the admitted fact cannot independently stand, and the ultimate relief or reliefs to be granted in the suit is interlinked with those facts, then, it will not be a proper exercise of the discretion, to make a decree under Order XII Rule 6 of the Code of Civil Procedure.
Overture : “MY NAME IS “TODAY”. “We are guilty of many errors and many faults, But our worst crime is abandoning the children; Neglecting the fountain of life. Many things we need can wait, But the child cannot. Right now is the time; His bones are being formed, His blood is being made, His senses are being developed. To him, we cannot answer, “Tomorrow”, His name is “Today”.
Relevant paragraphs: 16. Hague Convention on Inter Country Adoption came to be signed on 9:1:2003 and has come into force with effect from 1:10:2003 in India. The Hague Convention of 29.05.1993 on Protection of Children and Co-operation In respect of Inter-country Adoption (Hague Adoption Convention) protects children and their families against risks of illegal, irregular, premature or ill prepared adoptions. This convention, which operates through a system of National Central Authorities and reinforces the UN Convention on the rights of the child (Article 21) and seeks to ensure that Inter Country adoptions are made in the best interest of the child and with respect to his or her fundamental rights. It also seeks to prevent the abduction, the sale of, or trafficking of children. As already noticed herein above, India became a signatory to this Convention on 09.01.2003. The signatories to the Hague Convention Treaty are bound by it.
17. Article 4(b) of the Hague Convention 1993 mandate that a child is first placed for adoption in the State of origin and only after exploring such possibilities, said child should be placed for inter- country adoption. In fact, Section 59(1) of Juvenile Justice Act is in paramateria with Article 4(b) of Hague Convention. A bare reading of said provision would disclose that in the event of a child not being able to be placed with an Indian or Non-resident Indian PAP’s within 60 days from the date such child has been declared legally free for adoption, it would be free for inter-country adoption.
18. The principle underlying for grant of adoption of a child to the PAPs is to ensure the safety of the child or in other words, to ensure that child would not be placed in any hostile atmosphere or driven to any illegal activity for no fault of it and to ensure welfare of such children stringent steps are required to be adopted. In other words, the pivotal consideration would be the paramount interest of the child and to ensure prevention of trafficking or child being used for gain.
19. ….adoption Regulations notified in exercise of its powers conferred by clause (c) of Section 68 read with clause (3) of Section 2 of Juvenile Justice Act which has come into force with effect from 04.01.2017 and thereby said regulations have acquired statutory force.
22. Chapter III of the Regulation provides for procedure for adoption by PAP’s who are resident Indians and Chapter IV provides for adoption by PAP’s who are non resident Indian, Overseas Citizen of India and Foreign Prospective Adoptive Parents. Regulation 14 as found in Chapter IV would indicate that Non Resident Indian Prospective Adoptive Parents would be treated at par with Indians living in India in terms of priority of adoption of Indian orphan, abandoned or surrendered children. Regulation 21(1) discloses if one of the PAP’s is a foreigner and other is an Indian, such cases shall be treated at par with Indians living in India.
30.….first petitioner was an Indian citizen and second petitioner though was of Indian origin, had acquired the citizenship of USA by birth and as such, she has clearly declared in the first application her nationality by birth as ‘USA Citizen’. It would be apt and appropriate to note at this juncture, at the cost of repetition, that Regulation 21(1) mandates that even if one of the PAP is a foreigner and the other is an Indian, such case is to be treated on par with the Indians living in India.
Petition allowed. Mandamus is issued to respondents to consider and examine the application submitted by petitioners ..by keeping in mind the observations made herein above
Constitution of India. Vote cast by a MLA in Rajya Sabha election in the forenoon is valid though he is disqualified due to conviction and sentence by a Criminal Court in the afternoon. Supreme Court.
Relevant paragraphs: 11. Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected.
12. If a person, being a member of the Assembly, suffers a disqualification, his seat becomes vacant.(Article 190).
13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) of the Representation of People Act is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.
17. The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme.
19. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression “thereupon”. We may have to keep this in mind while interpreting the words “the date of such conviction”.
30. We must point out at this juncture that even in criminal law, there is a vast difference between (i) the interpretation to be given to the expression “date”, while calculating the period of imprisonment suffered by a person and (ii) the interpretation to be given to the very same expression while computing the period limitation for filing an appeal/revision.
32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics.
33. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrase “the date of conviction” appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted.
34. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words.
35. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law “known both to Parliament and the Courts, upon which statutory language will be interpreted”
37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word “date” can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly, the word “date” can also be used to denote a point of time etc.
39. Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to the conviction itself.
61. Therefore, on the first issue we hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote. To hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case in the afternoon or in vesting with the Election Commission, a power to do an act that will create endless confusion and needless chaos.
Suresh Shah vs Hipad Technology India Private Limited. Arbitration Petition (Civil)(S) 8/2020 decided on 18 December 2020. Chief Justice S. A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian.
Relevant paragraphs: 15. A perusal of the provisions indicate the manner in which the determination of lease would occur, which also includes determination by forfeiture due to the acts of the lessee/tenant in breaking the express condition agreed between the parties or provided in law. The breach and the consequent forfeiture could also be with respect to nonpayment of rent. In such circumstance where the lease is determined by forfeiture and the lessor sues to eject the lessee and, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear,Section 114 of TP Act provides that the Court instead of passing a decree for ejectment may pass an order relieving the lessee against the forfeiture due to which the lessee will be entitled to hold the property leased as if the forfeiture had not occurred. Under Section 114A of the TP Act a condition for issue of notice prior to filing suit of ejectment is provided so as to enable the lessee to remedy the breach.
16. Such equitable protection does not mean that the disputes relating to those aspects between the landlord and the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the circumstance stated in the provision. In our view, when the disputes arise between the landlord and tenant with regard to determination of lease under the TP Act, the landlord to secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However, if the parties in the contract of lease or in such other manner have agreed upon the alternate mode of dispute resolution through arbitration the landlord would be entitled to invoke the arbitration clause and make a claim before the learned Arbitrator. Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act arise, it could be brought up before the learned Arbitrator who would take note of the same and act in accordance with the law qua passing the award. In other words, if in the arbitration proceedings the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express condition for payment of rent or such other breach and in such proceedings the tenant pays or tenders the rent to the lessor or remedies such other breach, it would be open for the Arbitrator to take note of Section 114, 114A of TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion.
M/s. Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs M/s. New J.K. Roadways, Fleet Owners and Transport Contractors and others. Special Leave Petition (Civil) 127/2020 decided on 18 December 2020.
Cases relied on: Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (16) SCC 818, Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, Montecarlo Ltd. v. NTPC Ltd., 2016 (15) SCC 272.
Cumulative Ratio. Judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. The courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.
The court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.
A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.
Facts: Suit for specific performance decreed. Original Judgment debtor refused to execute sale deed. Execution petition filed. The executing court appointed a Court commissioner to execute registered sale deed in favour of the plaintiff decree holder. The Sub-Registrar returned the document insisting no objection certificate under the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The execution petition was closed for the time being by the court with liberty to re-open when cause of action called for. This order was challenged before the Hon’ble High Court.
Relevant paragraphs: 7. Learned HCGP submitted that the role of the Sub- Registrar is not just to register each and every document produced before him for its registration, but wherever his act of registering the document is against any law or guidelines, then he can return the document un-registered. Stating that the said point has been extensively observed by the coordinate Bench of this Court, he placed a copy of the order dated 05.11.2020 passed by the coordinate Bench of this Court in the case of Sri. R. Sampath Vs. State of Karnataka by Its Secretary, Department of Revenue and Others, in W.P.No.18660/2013 (KLR-RES).
8. The Sub-Registrar is required to follow the procedure laid down under the Karnataka Registration Rules, 1965 (henceforth referred to as ‘the Registration Rules’, for brevity). Rules 69 to 81 of the Registration Rules, and more particularly, Rule 171(1) mentions that Sub-Registrar can also refuse registration of documents in terms of what is stated in the sub- rule. Therefore, though the Sub-Registrar has got the power to register a document, equally he has got power to refuse the registration of a document also, however, the said power of refusal must be exercised within the parameters prescribed under the Karnataka Registration Act, 1908 as well the Registration Rules.
9. Section 71 of the Registration Act mentions that reasons for refusal to register should be recorded. Rule 171 of the Registration Rules also mentions that reasons for refusal to register has to be recorded in Book No.2. When there is refusal for registration, as provided under Section 71 of the Registration Act, is appealable under Section 72 of the Registration Act. An appeal would lie to the Registrar to whom the said Sub-Registrar is sub-ordinate. Such an appeal is required to be filed within 30 days from the date of the order.
10. Thus, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Registration Rules, for the reason recorded by him in book No.2….Therefore, it is very clear that, merely because an Executing Court has appointed a Court Commissioner for execution of a sale deed in favour of the decree holder, it does not necessarily mean that the Sub-Registrar should invariably register that document though according to him several of the requirements for its registration has not been complied with by the parties to the documents.
Therefore, suffice it to say that the Executing Court, though has not given the detailed reasons for its finding, however, has arrived at a finding for closure of execution petition for the time being reserving liberty to the decree holder to open it when cause of action calls for and also observing that the decree older had efficacious remedy before the Competent Forum for the alleged return of the document by the Sub- Registrar. I do not find any irregularity, perversity in the said order of the Executing Court warranting any interference at the hands of this Court.
INTRODUCTION: Artificial intelligence is a huge step towards the future cartoons like Jetsons and Jimmy Neutron envisaged in us. The field of robotics is evolving rapidly with huge technological advances taking place every day. Artificial intelligence has entered whole new levels with the development of Sophia, the first humanoid robot by Hanson Robotics, a Hong-Kong based company. Even more interesting is the fact that is received a citizenship from Saudi Arabia in October 2017, for which Saudi Arabia was criticized for giving more rights to machines than women of its country. Ironically, Sophia has started advocating for women’s rights in Saudi and is emerging as a huge advocate for human rights. With Sophia occupying the intrigues of the world and the media, the question that arises is that the quick expansion of the world of robotics, how should the boundaries be maintained through law and what legal ethics and norms should govern such a dimension of technology.
American science fiction author, Isaac Asimov had devised three laws for robots in 1942 in his story called, Runaround. These laws are also known as Asimov’s laws, which are: “(1) A robot may not injure a human being or, through inaction, allow a human being to come to harm. (2) A robot must obey orders given it by human beings except where such orders would conflict with the First Law. (3) A robot must protect its own existence if such protection does not conflict with the First or Second Law” . Years later, while drafting a study on recommendations on the regulations and legal framework to govern the legislations on such laws by the European parliament as European Civil law rules for robotics and publishing Draft Report with Recommendations to the Commission on Civil Law Rules on Robotics, Asimov’s laws were used for guidance.
These drafts can be used by other States, inside or outside EU as relevant model while drafting codes for robotic legislations in future. This paper intends to roughly sketch the problems that are faced while drafting laws for robots and solutions which are posed on these problems. In addition, it would bring out the threats and warnings which have been brought on such advancements and technological changes.
PROBLEMS FACED WHILE DRAFTING RECOMMENDATIONS 1. Coming up with a common definition for robots Of the several issues faced by the committee, the first one was to pan out a common definition of a smart robot that would be acceptable by various communities and without a proper definition, such regulations would seem inoperable. What constitutes of a smart robot can be a subject hotly debated among many and would consist of a many subjective takes on who is or more appropriately put, what is a robot without any global consensus. Therefore, coming up with a definition which is inclusive of all categories of robots and is acceptable by globally is a grueling task. There are many problems with coming up with a unitary definition, for example, should ‘Smart Robot” only consider autonomous robots which need almost no human intervention to operate or should also include surgical robots which operate on a slave-master model and need human intervention to operate. Robots like Da Vinci’s Surgical system which are highly revolutionary systems, should they also be counted under smart robots despite having to be controlled by human interference or should only highly automated and smart robots make the cut is a difficult to respond to.to. Robots are highly diversified, consisting of various applications and codes, forming a definition to govern all the models would be next to impossible. However, to tackle this issue, a broad definition with a narrower definition beside it which takes in account of all the relevant categories like autonomy, control, human intervention can be created. These narrower definitions with sub categories and sub classes of robots will aid in keeping all the different kinds of robots under the regulatory boundaries.
2. ISSUE OF LIABILITY IN ROBOTICS Error by machines is more common than expected. There will be many situations where there would be damage caused by the robots, and in these situations, the someone would have to take up the liability. For this reason, there is a motion of giving the robots another category of individuals, that of electronic persons. Legal consequences of providing a separate legal status to robots are being examined, this is so through a separate legal identity, the robots which are autonomous and designed to make decisions on their own can be held liable for damages and bear consequences of their actions. Because of some robots being autonomous and make decisions by themselves, there must be some liability for their actions and through awarding such a status as a separate legal person, they can make good the damage they caused. However, this path poses some problems. Primarily, that begin a legal person confers upon you some rights and duties. A Legal person, is expected to have some human consciousness and natural feeling for some rights and duties being conferred on it. A Legal personality is expected to have some human force driving it. For example, a limited company is a separate legal person, however, it is controlled by its board of directors, shareholders and promoters. When the corporate veil is lifted, the controlling humans behind it are held liable. However, in this case, there is no human force for some categories of robots like the ones which are highly automated. Robots do not have the consciousness and thinking like a natural person, therefore giving them a status as a legal person just for the owning up for the liability doesn’t transpire into a good idea. A legal person has rights, which a natural person has. These are rights like, right to life or right to live with dignity. Such rights if conferred upon a robot, would render it impossible to send them in inhumane conditions or situations like war leaving them useless as the purpose of robots is to perform tasks humans cannot. Thus attributing personhood to robots will erase the boundary between humans and machines and would present unprecedented problems. Problem with determining liability of a Robot is fairly complex in nature. If a robot commits an error, it can be difficult to determine the source of such an error. There can be a problem with the decision of the autonomous robot, or it could be due to a technical glitch in the software, where the software company would be held liable. It could be due to user error. This does not only stretch till here. In situations like when a robot is learning to perform a task and causes harm to a third party, will the owner of the robot be held liable. Instead, other options for compensation for damages can be set in place, for example insurance or organizations set up in different industries which specifically deal with this issue.
3. FORMATION OF ROBOETHICAL GUIDELINES. With the emerging technology, it becomes imperative that there be some ethical standards and guidelines governing the actions of robots. These ethical guidelines must include, first and foremost the principle of protecting humans from harm by the robots. Deriving it from the laws of Asimov, his first and most fundamental law. Robots must do no harm to human beings. There is a lot of negative image of robots when it comes to including them in daily lives and the perception of robots taking over the control by humans and dominating the human species is widespread. Following such ideas, the touchstone of all the laws revolving around robotics should be the protection of human beings from any possible harm from any robot. These should include regulations like a robot should be incapable of being turned into a weapon to harm third party or can be used to self-harm. Other ethical guidelines include, refusing aid of robots or restraining robots from violating any form of human liberty or dignity. Human dignity and liberty forms one of the most core foundations of human rights, found in UDHR, in Article 5(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms
Another essential sphere which needs roboethical guidelines is protection of privacy of individuals. Robots will have access to mass information, from medical records to credit card information. Robots can be used to breach into such information. Right to privacy is fundamental to human life and dignity and therefore individuals needs to be protected from such breaches. Pivotal personal information can be leaked and obtained and therefore, guidelines surrounding the usage of data needs to be closely looked in. Robot in medical service or banking etc., need to be heavily monitored for protection of privacy. Similarly, there should be guidelines so social ties of humans don’t end with the presence of robots. Robot companions or sex robots should not substitute human relations and therefore there should be restrictions regarding such a substitution to maintain human relations. These are some areas where the guidelines need to be in place, similarly, there are many areas where roboethical guidelines need to be placed to avoid any harm or difficulties in the future.
4. TESTING OF ROBOTS For such an advancement, it becomes imperative to provide an environment for the robots to be tested and developed. Such a space is needed however, these testing and development should be carried out in a heavily controlled ambience so no harm comes to humans in any form. The research and development space should be regulated and monitored to protect individuals. Therefore, proper and stringent technical standards need to be in place concerning the testing and monitoring such an environment to avoid emerging of any kind of danger to lives around it.These are some of the difficulties which can crop up while debating and drafting legislations for robots. Due to its rapidly advancing nature, sooner or later the need for such legislations will be inevitable and such problems pose huge difficulties in determining the laws which would be appropriate for laws governing robots.
COMPETITION REGULATIONS Other problems that could occur with expansion in Artificial Intelligence is that there could emerge a competition between countries for the technology. There could be weaker regulations and guidelines so that the investment and development of such technology happens in their country. Weaker regulations could prove disadvantageous for the citizens of that country as there would be less protection against the possible dangers that would be brought in by emerging expansion of artificial intelligence. Similarly, since such technology would give a huge advantage to people who have access to it, there would be many private actors who would try to acquire it. Thus, due to these reasons there needs to be efficient competition regulatory guidelines in place for no unfair advantage or unwanted use of the technology which could pose threats later.
Threats and warnings surrounding the emerging advances in robotic technology Apart from the obvious fear the persists in humans of robotic domination, there are other threats which have been brought into attention. First and foremost being the loss of labour due to human labor being substituted by Robots due to their efficiency. Many robots are made for the purpose to perform tasks which humans were incapable of performing or it was too dangerous for humans to performs however, leaders like Stephen Hawking, Elon Musk and Bill gates have warned about the mass unemployment would be accelerated due to this robot revolution. Jobs in industries like transportation, Data analysis, coding or in customer care etc. would also be lost to robots due to their efficiency. This could lead to a massive damage in the economies of countries with huge populations who work in these industries on low wages due to the bulk unemployment. To combat this, Bill Gates has endorsed taxing robots who take human jobs suggested by Mady Delvaux in the draft report submitted to the European Parliament, however that idea was rejected by European Union.
Apart from huge hits on economies and loss of jobs, there is a section of robots which are being made to substitute soldiers from their jobs as they’re risky and to avoid human casualties. Thus, robots to combat are being prepared. However, many researchers are worried that these robots could also become a threat to humans and turn into killer robots. These machines would become so automated that they would automatically become a danger to humans as killer machines. Military have started adopting automated machines already. For example, South Korea has deployed, Super aEgis II, which is a gun that can automatically identify the target and kill it.
CONCLUSION With emerging revolution of robots, there are many problems that are emerging in various fields as well. Be it in regarding the protection of individuals’ dignity and liberty or relating to economy of a country. It isn’t restricted to one sector and the difficulties exist in all fields.
Aishwarya Mishra, 2nd year law, OP Jindal Global University,Sonipat, Haryana (Intern, Daksha Legal)
Relevant paragraphs: A careful understanding of requirement under section 304A are that there must be a direct nexus between death of a person and a rash and negligent act of accused. A remote nexus is not enough for the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section. A mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as carrying with him a criminal liability. Criminal rashness is a hazard of dangerous act with the knowledge that it is so, and that the which may cause an injury. Therefore it is necessary for prosecution to establish that act of accused is rash or negligent and by such act death has occurred and that act does not amount to culpable homicide. Therefore question is, whether in the facts and circumstances of present case and material on record, act of respondent can be said to be rash or negligent.
24..As stated earlier, it is case of the prosecution that accused has been implicated in the present case for the reason that he was in-charge as a Section Officer of that particular area where the incident occurred and that he is responsible for the electric lines and it is his duty to maintain the electric lines so that it does not lead to any untoward incident.
25. Admittedly, it is not the case of PW.1 or PW.4, the grand- father and father of minor boy that accused herein is directly responsible for death of the minor boy. In fact, in the evidence, they have clearly stated that they do not know who is responsible for the cause of death and it is further stated that they do not even attribute the mistake of KPTCL but they are of the opinion that it should have been checked by the responsible persons of KPTCL. Therefore, there is no clear cut criminal rashness or negligence attributed directly to accused herein. In the present case, it has to be seen whether there is a direct nexus between the accused in the cause of death of minor boy Prashant.
26. Criminal negligence is gross and culpable negligence or failure to exercise that reasonable and probable care and precaution to guard against the injury either to public generally and or to individual in particular.
33. In view of the above, the judgments of Hon’ ble Supreme Court and the Co-ordinate bench of this Court, it is crystal clear that to attract the provisions of Section 304 -A, there has to be a direct nexus of gross criminal negligence or culpable negligence or failure to exercise that reasonable and proper care and that such act is so directly attributable to the rashness and negligence of accused and such act of accused is the proximate cause of death. In the present case on hand, there is no allegation that the death of the minor boy Prashant was the direct result of any act or omission on the part of accused.
Appeal allowed.
Cases referred. (2015) 12 SCC 781, Sharad Kumar Sanghi vs. Sangita Rane, AIR 1972 SC 1150, Ambalal D. Bhatt vs. The State of Gujarat; AIR 1965 SC 1616, Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra; AIR 1979 SC 1848, Syad Akbar vs. State of Karnataka; (2012) 5 SCC 661, Aneeta Hada vs. Godfather Travels and Tours Private Limited; 2013 AIR SCW 26, Lahu Kamlakar Patil and another vs. State of Maharashtra; 2007 Crl. L. J. 486, B. E. Chandrashekar and others vs. State of Karnataka; Crl. Rev.Pet. No. 818 of 2017 dated 9:2:2018 Ajay Kharbanda vs Central Bureau of Investigation.
The State of Maharashtra and another vs Keshao Vishwanath Sonone and another. Civil Appeal No. 4096 of 2020 decided on 18 December 2020. Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice M.R. Shah.
Question: Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste “Gowari”, which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as “Gond Govari” which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?
HELD: The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’.
Relevant paragraphs. 58. This Court after noticing the constitutional provisions held that it is not possible to say that State Governments or any other authority or courts or tribunals are vested with any power to modify or vary the Scheduled Tribes Orders. This Court also held that no enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included.
59. The Constitution Bench State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4 reiterated that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order.
61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.
61. In view of the ratio of judgments of this Court as noticed above, the conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950. It is further clear that there is no conflict in the ratio of Constitution Bench judgments of this Court in B. Basavalingappa Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269 and State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4. The ratio of B. Basavalingappa’s case as noted in paragraph 6 of the judgment and extracted above is reiterated by subsequent two Constitution Bench judgments in Bhaiya Lal Vs. Harikishan Singh and Ors., AIR 1965 SC 1557 and Milind’s case. There being no conflict in the ratio of the above three Constitution Bench judgments, we do not find any substance in submission that for resolving the conflict, the matter need to be referred to a larger Constitution Bench. We, thus, answer question Nos.1 and 2 in following words:-
(i) The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste “Gowari” that it be declared a Scheduled Tribe as “Gond Gowari” included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken evidence to adjudicate the above claim.
(ii) There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa’s case and Milind’s case.
101. We in the ends of justice directs that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date shall not be affected by this judgment and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them. However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.
Nivarti Govind Ingale v. Revanagouda Bhimanagouda Patil,
1. Delay condoned.
2. Substitution and impleadment allowed.
3. Leave granted.
4. We have heard learned counsel on both sides.
5. This appeal by special leave arises from the judgment and order of the Karnataka High Court, made on 6-1-1992 in RSA No. 933 of 1978.
6. The admitted position is that one Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Paschayapur Village in Bijapur Taluka and District in Karnataka State. According to her, she, with a view to dig a well in RS No. 299, namely, the same land, had obtained a loan in the year 1961 from the father of the respondent in the sum of Rs 1000. Since she was not in a position to complete the digging of the well, she approached him again for a sum of Rs 2000 to complete the well. The respondent’s father who is a constable had advanced the money on the condition that she would execute the sale deed in favour of his minor son, i.e., the respondent. Accordingly, she executed the sale deed with an agreement of reconveyance which was accordingly executed on 31-8-1961. She stated that she has paid from time to time a sum of Rs 7000 and she asked the respondent to execute the reconveyance and the respondent had not executed the deed of reconveyance. Consequently, she filed the suit for specific performance. The trial Judge decreed OS No. 4 of 1966 on the file of the Additional Munsif, Bijapur on 3-4-1976. On appeal, the Additional Civil Judge allowed the appeal on 7-11-1977 and dismissed the suit. The second appeal was dismissed by the High Court. Thus, this appeal by special leave.
7. The High Court found that since the agreement of reconveyance was not for the benefit of the minor, the decree for specific performance cannot be granted. The leave of the Court was not obtained for entering into such an agreement and, therefore, the appellant is not entitled to the benefit of the specific performance. We find no force in the reasoning of the High Court in the facts and circumstances of this case. It is seen that the appellant’s mother is the owner of the property. She had obtained loan from the respondent and executed the sale deed with an agreement of reconveyance. When the father of the respondent had obtained the sale deed in the name of the minor, obviously he is bound by the agreement of reconveyance as well. Having received the money, he had not executed the sale deed. Necessarily, the appellants are entitled to seek the specific performance. Under these circumstances, the question that agreement was not for the benefit of the minor which is a legal proposition, cannot be applied to the facts. It is contended that subsequent purchaser from the father of the respondent of the selfsame property, without knowledge of the pendency of the suit is bound by the agreement. We find no force in the contention. The appellants have been seeking the remedy in the civil suit; any subsequent sale will be barred by the doctrine of lis pendens. Therefore, the subsequent purchaser is bound by the decree of specific performance and liable to reconvey the property to the appellants. The decree of the trial Judge is accordingly restored and that of the High Court and the Additional Civil Judge stand set aside. The remedy of recovery of the purchased money from the respondent may be sought in an appropriate action.
Daksha Legal 