PRESENCE OF PROPER PARTIES: Court’s Duty
Hon’ble Kurian Joseph and A.M. Khanwilkar, JJ., have held that the firm as represented by its managing partner, if any, or duly authorized person amongst the partners to represent the firm will stand impleaded as additional respondent and all the partners will stand impleaded also as additional respondents. We leave open all the questions, to be adjudicated before the Rent Controller including the question as to whether there was a partnership as tenant and being an issue once adjudicated and concluded before the Rent Controller, whether that finding is conclusive as far as the present proceedings are concerned.
In view of the power under Order I Rule 10 suo motu invoked by us, it is not necessary for the parties to file separate application, since we have ourselves impleaded the firm and the partners in the proceedings.
Both the firm in the name and style of K.K. Lee and all its partners should be on the array of parties as proper party. No doubt, they are not necessary parties from the point of view of the Eviction Petitioners, but the Court has a duty to see whether the presence of the proper parties would facilitate the complete determination of the matter in dispute.
Richard Lee v. Girish Soni, 2017 (171) AIC 18 (S.C.).
RIGHT TO PRIVATE DEFENCE: Mere reasonable apprehension is enough
With regard to the evidence that the appellant was being assaulted and in fact attempted to be strangulated, it needs to be considered whether the appellant shot the deceased in the exercise of his right of private defence. Such a right is clearly available when there is a reasonable apprehension of receiving the injury.
Hon’ble S.A. Bobde and L.N. Rao, JJ., have held that the appellant reasonably apprehended a danger to his life when the deceased and his brothers started strangulating him after pushing him to the floor. As observed by this Court a mere reasonable apprehension is enough to put the right of self-defence into operation and it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the appellant apprehended that such an offence is contemplated and is likely to be committed if the right of private defence is not exercised.
This Court has held that a person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or upon being directly threatened. We are inclined to think that the appellant had been put in such a position.
We have no doubt that the appellant exceeded the power given to him by law in order to defend himself but we are of view that the exercise of the right was in good faith in his own defence and without premeditation.
The strong possibility is that there was a scuffle in which the appellant was pinned to the floor and attempted to be strangulated by the deceased. The appellant may have pulled out his gun and upon seeing the gun, the deceased may have released the appellant and started running upon which the appellant fired the shot which hit him from the back side. This also explains the trajectory of the shot in which the bullet entered the body below the right shoulder, and travelled upwards without exiting.
Suresh Singhal v. State (Delhi Administration), 2017 (171) AIC 20 (SC).
DE NOVO TRIAL: new trial
The word “re-trial” is used under section 386(b)(i), cr. P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the Appellant Court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a re-trial must be such that where the trial was undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for re-trial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the court refused to hear certain witnesses who were supposed to be heard.
Section 386, Cr. P.C., deals with the powers of the Appellate Court. As per section 386 (b), Cr. P.C., in an appeal from a conviction, the Appellate Court may : (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such Appellate Court or committed for trial; or (ii) alter the finding, maintaining the sentence; or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
Hon’ble Dipak Misra and R. Banumathi, JJ., have held that ‘de novo’ trial means a “new trial” ordered by an Appellate Court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the Appellate Court has power to direct the Lower Court to hold ‘de novo’ trial. But the question is when such power should be exercised.
An order for re-trial of a criminal case is made in exceptional cases, and not unless the Appellate Court is satisfied that the court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was.
This Court stated, “a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable; it should be limited to the extreme exigency to avert ‘a failure of justice’. Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial.”
Ajay Kumar Ghoshal v. State of Bihar, 2017 (171) AIC 77 (SC).
MEDICAL TERMINATION OF PREGNANCY: permitted
Hon’ble S.A. Bobde and L.N. Rao, JJ., have held that in the circumstances given the danger to her life, there is no doubt that the petitioner has a right to protect and preserve her life and particularly since she has made an informed choice. The exercise of her right seems to be within the limits of reproductive autonomy.
In the circumstances, the Court consider it appropriate in the interests of justice and particularly, to permit petitioner No. 1 to undergo medical termination of her pregnancy under the provisions of Medical termination of Pregnancy Act, 1971. The learned Solicitor General Mr. Ranjit Kumar who took notice on the last date of hearing has not opposed the petitioner’s prayer on any ground, legal or medical. Ordered accordingly.
Meera Santosh Pal v. Union of India, 2017 (171) AIC 83 (SC).
