ALTERATION OR ADDITION OF ANY CHARGE: Jurisdiction of Court
The court can change or alter the charge if there is defect or something is left out. The test is that it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.
It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in- built safeguards in Section 216 CrPC.
Anant Prakash Sinha alias Anant Sinha v. State of Haryana and another, Criminal Appeal No. 131 of 2016, decided on March 4, 2016; [Dipak Misra and Shiva Kirti Singh, JJ.].
MLAs’ SALARY AND OTHER BENEFITS: No indefeasible constitutional right
Any Member of a Legislative Assembly holds office until such membership comes to an end by some process established by law. Constitutional offices commencing from the office of the President of India are meant for and established for securing the goals adumbrated in the Preamble to the Constitution. Each of these offices is a component in larger machinery established to make it possible for the people of this country to realise the goals indicated in the Preamble of the Constitution. Any monetary benefit incidental to the holding of such offices is only to compensate for the time and energy expended by the holder of the office in the service of the nation. It is for this very reason that a Member of a Legislative Assembly cannot be treated as holding for the purpose of eking out a livelihood.
Salary and other benefits to which the members of a legislative body are entitled to during their tenure are purely incidental to the membership and they do not even create an independent and indefeasible constitutional right. Therefore, the question that the deprivation of such benefits amounted to deprivation of fundamental right under Article 21 does not arise at all.
Alagaapuram R. Mohanraj and Others v. Tamil Nadu Legislative Assembly, Writ Petition (C) No. 455 of 2015, decided on February 12, 2016; [Jasti Chelameswar and Abhay Manohar Sapre, JJ.]
ARBITRAL AWARD: Interest pendente lite
Section 31(7)(a) of the 1996 Act confers the power on the arbitrator to award interest pendente lite, “unless otherwise agreed by parties”. Thus, it is clear from the provisions contained in Section 31(7)(a) that the contract between the parties has been given importance and is binding on the arbitrator. The arbitration clause is also required to be looked into while deciding the power of the arbitrator and in case there is any bar contained in the contract on award of interest, it operates on which items and in the arbitration clause what are the powers conferred on the arbitrator and whether bar on award of interest has been confined to certain period or it relates to pendency of proceedings before the arbitrator.
If the contract expressly bars the award of interest pendente lite, the same cannot be awarded by the arbitrator. We also make it clear that the bar to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal, as ouster of power of the arbitrator has to be considered on various relevant aspects referred to in the decisions of this Court; it would be for the Division Bench to consider the case on merits.
Union of India v. Ambica Construction, SLPs (C) No. 1114 of 2009 with No. 17219 of 2009, decided on March 16, 2016; [Ranjan Gogoi, Arun Mishra and Prafulla C. Pant, JJ.]
DISHONOUR OF CHEQUE: Liability of Director
It is an admitted position that simply because someone is a Director in a company, he cannot be held responsible in respect of a cheque issued on behalf of the company, but if the Director concerned is in charge of and is responsible to the company for its conduct of business, he can be held to be guilty of the offence under Section 138 of the Act and therefore, the High Court ought not to have quashed the proceedings against such Directors.
Tamil Nadu News Print and Papers Limited v. D. Karunakar and others, Criminal Appeal Nos. 1846- 47 of 2008, decided on August 6, 2015; [Anil R. Dave and Amitava Roy, JJ.]
MEMBERSHIP OF LEGISLATIVE ASSEMBLY: Not a Fundamental Right
The right to contest an election to the legislative bodies established by the Constitution is held not to be a fundamental right. Therefore, logically it would be difficult to accept the submission that the right to participate in the proceedings of the legislative bodies can be a fundamental right falling under Article 19(1)(g). No citizen is entitled as of right either to become or continue for the whole lifetime as Member of Legislative Assembly. Acquisition of the membership depends on the decision of the electorate and is conferred by a process established by law. Even after election, the tenure is limited. Fundamental rights do not come into existence upon the volition of others. They inhere in the citizens and are capable of being exercised independently without the need for any action or approval of others subject only to the restrictions imposed by law.
Alagaapuram R. Mohanraj and others v. Tamil Nadu Legislative Assembly, Writ Petition (C) No. 455 of 2015, decided on February 12, 2016; [Jasti Chelameswar and Abhay Manohar Sapre, JJ.]