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DYING DECLARATION : No format prescribed

Dying declaration made by the deceased is admissible in evidence under section 32(1) of the Evidence Act, 1872. In the absence of any kind of infirmity or/ and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme care and caution.

The principles which is always kept in mind, while examining the dying declaration of the deceased is that “a man will not meet his Maker with a lie in his mouth”. As aptly said by Mathew Arnold in a very old English case – “Truth sits on the lips of a dying man”. This principle is deduced from a well-known Latin legal maxim “nemo moriturus praesumitur mentire”.

Hon’ble A.K. Sikri and A.M. Sapre, JJ., have held that in our considered opinion, firstly, the law does not prescribe any format for recording dying declaration; and secondly, it also does not prescribe any specific authority to record it unless any special law or rule is enacted to that effect. No such rule was brought to the notice of the court below and here also. On the other hand, we find that perfect working and neatly structured dying declaration at times brings about an adverse impression and creates suspicion in the mind of the court since the dying declaration needs to be drawn with mathematical precision.

All that the law requires is that the declarant should be in a fit state of mind and be able to recollect the situation resulting in the available state of affairs in relation to the incident and the court should be satisfied that the reliance ought to be placed thereon rather than distrust.

We have not been able to notice any kind of illegality in recording the dying declaration by the Inspector as urged by the learned counsel for the appellant. As observed supra, the concerned Inspector before recording the statement had got the deceased medically examined by the Doctor and it was only after the Doctor certified that the deceased was in fit state of mind to speak, his dying declaration was recorded. In the absence of any other suspicious circumstances surfacing the dying declaration, it is not possible to discard the dying declaration only on this ground.

Shama v. State of Haryana, 2017 (170) AIC 123 (SC)

CONTEMPT OF SUPREME COURT: No Power with High Court to punish

The genesis of the suo motu proceedings initiated by the High Court, as noticed earlier, lay in the publication of the articles, stories and write ups questioning the propriety of certain orders passed by a two-Judge Bench of this Court of which Justice Y.K. Sabharwal was the Presiding Judge. The substance of the offending publication was that Justice Sabharwal had by reason of the orders passed by the Bench benefitted the partnership business of his sons in real estate development in and around Delhi. The text and the context of the said publications was focused entirely on the question whether Justice Sabharwal should have heard the matters and passed sealing orders of commercial properties in residential areas of Delhi which orders were perceived to be beneficial to the real estate business of his sons. What is, therefore, undeniable is that the publications were actually seen as contemptuous vis-à-vis the Supreme Court. No part of the publications referred to the High Court of Delhi or any other High Court for that matter. The publications did not refer to any Judge or any order of any court subordinate to the High Court of Delhi. Initiation of proceedings by the High Court in such circumstances was, it is evident, meant to vindicate the Supreme Court more than the High Court which initiated those proceedings. The question is whether the High Court could do so.

Hon’ble T.S. Thakur, CJI and A.M. Khanwilkar, J., have held that there is, from a plain reading of the Articles 129, 215 of Constitution and section 10 of Contempt of Courts Act, nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution which can be said to empower the High Court to initiate proceedings suo-motu or otherwise for the contempt of a superior court like the Supreme Court of India. As a matter of fact, the Supreme Court under Article 129 and High Court under Article 215 of the Constitution are both declared to be Courts of record. One of the recognized attributes of a Court of record is the power to punish for its contempt and the contempt of courts subordinate to it. That is precisely why Articles 129 and 215, while declaring the Supreme Court and the High Courts as Courts of Record, recognize the power vested in them to punish for their own contempt. The use of the expression “including” in the said provisions is explanatory in character. It signifies that the Supreme Court and the High Courts shall, as Courts of Records, exercise all such powers as are otherwise available to them including the power to punish for their own contempt.

The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a Superior Court. Such a power has never been recognized as an attribute of a Court of record nor has the same been specifically conferred upon the High Courts under Article 215. A priori if the power to punish under Article 215 is limited to the contempt of the High Court or courts subordinate to the High Court as appears to us to be the position, there was no way the High Court could justify invoking that power to punish for the contempt of a Superior Court. That is particularly so when the Superior Court’s power to punish for its contempt has been in no uncertain terms recognized by Article 129 of the Constitution.

Vitusah Oberoi v. Court on its own motion, 2017 (170) AIC 43 (SC).

Holding premises gratuitously:  no right to acquire

Having gone through the record, the submission of the appellants that the grand-mother of the respondent though did not have any right qua the premises was permitted to occupy purely out of love and affection is not without merit. The status of the grand-mother is thus of a gratuitous licensee and that of the respondent is purely of a relative staying with such gratuitous licensee.

Rama Gowda was a case in which two adjoining owners were claiming independent right of ownership in respect of a strip of land in between their holdings. That piece of land was in possession of the plaintiff and as such while dealing with the controversy, this Court held that a person in peaceful possession is entitled to retain his possession. However, while dealing with the concept of “settled possession” it was observed in paragraph 9 as under :

“The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.”

The matter was further elaborated in subsequent decision of this Court in Maria Margarida as under :

“97. Principles of law which emerge in this case are crystallized as under :

  1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
  2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
  3. The courts are not justified in protecting the possession of a caretaker, servant or any servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
  4. The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
  5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”
  6. Hon’ble P.C. Ghose and U.U. Lalit, JJ., have held that a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court.Behram Tejani v. Azeem Jagani, 2017 (170) AIC 47(SC).

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