SJANEWSLETTER

Monthly Newsletter published by theJammu & Kashmir State Judicial Academy

Volume - I, Issue 8 August, 2008

Chief

Judge-In-Charge

PatronHon’ble Mr. JusticeK. S. Radhakrishnan

Hon’ble Mr. JusticeHakim Imtiyaz Hussain

Chief Justice

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The EditorSJA Newsletter

Jammu & KashmirState Judicial AcademyJanipur, Jammu-180001

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Editor

Director SJAGh. Mohi-ud-Din Dar

Associate Editor

Reader (Liaison Officer)Pankaj Kumar Gupta

“In a constitutional democracy wedded to and governed

by the rule of law, responsibilities of the Judiciary arouse great

expectations. Justice Frankfurter remarked : ‘It is not a printed

finality, but a dynamic process. Its applications to the actualities

of Government is not a mechanical exercise, but a high function

of statecraft’.

The constitutional adjudications have the urgent task of

defining or redefining from time to time the basic constitutional

concepts in a changing and disparate world. Judicial policy is

directed to the management within the constitutional parameters

of the apparent conflicts in society. The exercise of democratic

power on the one hand and legal control of Government on the

other, pose seemingly irreconcilable positions.

It is said that an unfailing index to the maturity of a

democracy is the degree of its respect for the unwritten

conventions. The silences of a Constitution are eloquent and

they are constitutional device forming part of an advanced

constitutional culture.

The measure of success in achieving all this may be

regarded as the measure of success of the working of the

Constitution and in promoting and sustaining constitutionalism.

The role of the judiciary in protecting individual rights and

freedoms and promoting constitutional values is not

discretionary but obligatory.”Excerpts from lecture delivered by Hon’ble Mr. Justice M.N. Venkatachaliah,Former Chief Justice of India at New Delhi on “Constitutional underpinnings of aConcordial Society”, [2008 AIR Jour (8)113].

Topic of the Month

ContentsTopic of the Month........................ 1

Supreme Court Judgments of Public 2Importance.....................................

Academy News............................. 4

News & Views................................ 5

Case Comments.............................. 7

Composed, Desg. & Layout by :Imtiyaz Ahmad (Compositor)

2 SJA News let te r

On 11th March, 2008, a two Judges Bench inDivine Retreat Centre vs State of Kerala & Ors.[Criminal Appeal No.472 of 2008] held that the"Public Interest Litigant must disclose his identity soas to enable the court to decide that the informant isnot a wayfarer or officious intervener without anyinterest or concern.”

The Bench said that "there is heavy duty castupon the constitutional courts to protect themselvesfrom the onslaught unleashed by unscrupulouslitigants masquerading as Public Interest Litigants".

"The individual judges ought not to entertaincommunications and letters personally addressedto them and initiate action on the judicial side basedon such communication so as to avoidembarrassment; that all communications andpetitions invoking the jurisdiction of the court mustbe addressed to the entire Court, that is to say, theChief Justice and his companion Judges.The individual letters, if any, addressed to a particularjudge are required to be placed before theChief Justice for consideration as to the proposedaction on such petitions. Each Judge cannotdecide for himself as to what communication shouldbe entertained for setting the law in motionbe it in PILor in any jurisdiction", said the Bench.

On 26th March, 2008, a two Judges Bench inMadan Mohan Abbot vs State of Punjab [CriminalAppeal No.555 of 2008] observed that "that it isperhaps advisable that in disputes where thequestion involved is of a purely personal nature, theCourt should ordinarily accept the terms ofthe compromise even in criminal proceedings askeeping the matter alive with no possibility of aresult in favour of the prosecution is a luxury whichthe Courts, grossly overburdened as theyare, cannot afford and that the time so saved can beutil ized in deciding more effective andmeaningful litigation.”

"This is a common sense approach to thematter based on ground realities and bereft of thetechnicalities of the law", the Bench said.

On 10th April, 2008, a Constitution Benchin Ashoka Kumar Thakur vs Union of India & Ors.[Writ Petition (Civil) No. 265 of 2006] held that"the Constitution 93rd A m e n d m e n t Act, 2005

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[by which clause (5) was inserted in Article 15 of theConstitution to enable the State to makeprovision for advancement of SC, ST and Sociallyand Educationally Backward Classes (SEBC)of citizens in relation to admission to educationalinstitutions] was "valid" and did not "violate the'basic structure' of the Constitution so far as it relatedto "the State maintained institutions andaided educational institutions." Per majority, theBench left open the question as to whether theConstitution (Ninety Third Amendment) Act, 2005would be constitutionally valid or not as regardsthe "private unaided" educational institutions, to bedecided in an appropriate case. One of theHon'ble Judges, however, considered the issue andheld that the Constitution (Ninety ThirdAmendment)Act, 2005 was not constitutionally validso far as the private unaided educationalinstitutions are concerned.

After the Constitution 93rd Amendment Act,2005, the Central Educational Institutions(Reservation in Admission) Act, 2006 [Act No.5 of2007] was passed which prov ided fo rreservation of 15% seats for Scheduled Castes, 7½%seats for Scheduled Tribes and 27% forOther Backward Classes in Central EducationalInstitutions. The Bench held that Act 5 of 2007was "constitutionally valid subject to the definition of'Other Backward Classes' in Section 2(g) ofAct 5 of 2007 being clarified" to the effect that "if thedetermination of 'Other Backward Classes'by the Central Government is with reference to acaste, it shall exclude the 'creamy layer' amongsuch caste". The "quantum of reservation of 27% ofseats to Other Backward Classes in theeducational institutions provided in theAct" was "notillegal", said the Bench.

The Bench further held that "Act 5 of 2007 isnot invalid for the reason that there is no time limitprescribed for its operation". But majority of theHon'ble Judges in the Bench were of the viewthat "review should be made as to the need forcontinuance of reservation at the end of 5 years.”

On 11th April, 2008, a two Judge Bench inJitendra Singh vs Bhanu Kumari & Ors [C.A. No.2786 of 2008] held that "the purpose of Section 24CPC is merely to confer on the Court a discretionary

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SOME RECENT SUPREME COURT JUDGMENTSOF PUBLIC IMPORTANCE

(Delivered from 01-03-2008 to 31-05-2008)

power. A Court acting under Section 24 CPC may ormay not in its judicial discretion transfer a particularcase. Section 24 does not prescribe any ground forordering the transfer of a case. In certain cases it maybe ordered suo motu and it may be done foradministrative reasons. But when an application fortransfer is made by a party, the court is required toissue notice to the other side and hear the party beforedirecting transfer. To put it differently, the Court mustact judicially in ordering a transfer on the applicationof a party.”

On 16th April, 2008, a two Judge Bench inSatyawati Sharma (Dead) by LRs vs Union of India &Another [C.A. No.1897 of 2003] held that "Section14(1)(e) of the Delhi Rent Control Act, 1958 isviolative of the doctrine of equality embodied inArticle 14 of the Constitution insofar as itdiscriminates between the premises let for residentialand non-residential purposes when the same arerequired bona fide by the landlord for occupation forhimself or for any member of his family dependent onhim and restricts the latter's right to seek eviction ofthe tenant from the premises let for residentialpurposes only."

The Bench held that the "ends of justice will bemet by striking down the discriminatory portion ofSection 14(1)(e) so that the remaining part thereofmay read as :-"that the premises are required bona fideby the landlord for himself or for any member of hisfamily dependent on him, if he is the owner thereof, orfor any person for whose benefit the premises are heldand that the landlord or such person has no otherreasonably suitable accommodation." While adoptingthis course, the Bench kept in view the "wellrecognized rule that if the offending portion of astatute can be severed without doing violence to theremaining part thereof, then such a course ispermissible."

As a sequel to the above, the Bench held thatthe "Explanation appearing below Section 14(1)(e) ofthe 1958 Act will have to be treated as redundant."Section 14(1)(e) of the 1958Act was thus partly struckdown.

On 21st April, 2008, a two Judge Bench inSurjit Singh vs Mahanagar Telephone Nigam Ltd[C.A. No. 5354 of 2002] held that "where two relativesare living in the same house a distinction has to bedrawn between a telephone line in the name of aperson who is economically dependent on another(who may be the husband, father etc.), and thetelephone line in the name of a person who has anindependent source of income from which he is payingthe telephone bills.

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In the case of the former, i.e. a person who iseconomically dependent on another who is paying histelephone bills, the telephone line in the name of suchother relative on whom the subscriber is dependentcan be disconnected for non-payment of the telephonebills of the nominal subscriber.”

On 6th May, 2008, a two Judge Bench inSudhir Kumar Rana vs Surinder Singh & Ors [C.A.No.3321 of 2008] held that "if a person drives avehicle without a licence, he commits an offence", butthe "same, by itself, may not lead to a finding ofnegligence as regards the accident."

On 12th May, 2008, a two Judge Bench inMausami Moitra Ganguli vs Jayant Ganguli [C.A.No.3500 of 2008] held that "while determining thequestion as to which parent the care and control of achild should be committed, the first and theparamount consideration is the welfare and interest ofthe child and not the rights of the parents under astatute. Indubitably the provisions of law pertaining tothe custody of a child contained in either theGuardians and Wards Act, 1890 (Section 17) or theHindu Minority and Guardianship Act, 1956 (Section13) also hold out the welfare of the child as apredominant consideration. In fact, no statute, on thesubject, can ignore, eschew or obliterate the vitalfactor of the welfare of the minor."

"Better financial resources of either of theparents or their love for the child may be one of therelevant considerations but cannot be the soledetermining factor for the custody of the child", theBench said.

The Bench emphasized that "a heavy duty iscast on the Court to exercise its judicial discretionjudiciously in the background of all the relevant factsand circumstances, bearing in mind the welfare of thechild as the paramount consideration.”

On 16th May, 2008, a two Judge Bench inA.P.S.R.T.C. & Anr. vs. K. Hemalatha & Ors. [C.A.Nos.3623-3626 of 2008] held that "when two vehiclesare involved in an accident, and one of the driversclaims compensation from the other driver allegingnegligence, and the other driver denies negligence orclaims that the injured claimant himself wasnegligent, then it becomes necessary to considerwhether the injured claimant was negligent and if so,whether he was solely or partly responsible for theaccident and the extent of his responsibility, that is hiscontributory negligence. Therefore where the injuredis himself partly liable, the principle of 'compositenegligence' will not apply nor can there be anautomatic inference that the negligence was 50:50.”

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SJA News let te r 3

ACADEMY NEWSTraining Programme held in the month of August, 2008

One day orientation course on the topic of“Alternate Dispute Resolution” with specificemphasis on mediation and conciliation wasorganized and conducted on Ist of August, 2008 atSrinagar by the State Judicial Academy under theoverall guidance of Hon’ble Judge Incharge andHon’ble Patron-in-Chief.

Twenty Judicial Officers of the rank ofSub-Judges and Munsiffs from different districts ofKashmir province participated.

Resources person for the Ist Session was Dr.Mohd. Ayub, Associate Professor, Faculty of Law,Kashmir University, Srinagar. He mainly laid stresson the legal awareness of common masses andaccording to him people are not generally aware oftheir rights and they are not at all aware of the fact thatdisputes at the pre-litigation stage can also be resolved

by resorting toADRs. He also highlighted necessity ofincorporating Section 89 in the State Code of CivilProcedure as has been done in the Code of CivilProcedure (Central) because this becomes the basisfor resorting to different modes of ADRs. He also

emphasised the need for training of Judicial Officers.and Advocates also on mediation so that they getnecessary expertise for acting as mediators betweendisputants either at pre-trial stage or during the trial ofcases.

2nd Session was addressed by Mr. SyedMohd. Iqbal, District & Sessions Judge (Retd.) who inhis interaction with participants laid stress on doingsubstantial justice and in this connection referredto the term “Solemn Justice” and the background of

said term. He further told that ADR methods are notonly inexpensive and expeditious for disputeresolution but also do not leave behind any rancour inthe minds of the disputants. During his discourse, healso gave some relevant references of the efficacy andusefulness of ADR which he has experienced duringhis active judicial service career.

3rd Session was addressed by Ms. Gous-ul-Nisa Jeelani, Spl. Judge (Anti-corruption) Srinagar.She tried to make out the point that if JudicialOfficers work with missionary zeal then and thenalone ADR methods can prove efficacious and useful

SJA News let te r 4

Participants in the Orientation CourseParticipants in the Orientation Course

Proceedings During the Orientation CourseProceedings During the Orientation Course

national consumer court has ordered. And outstationcheques have to be encashed between seven and 14days, depending upon the distance from the placewhere the cheque is issued.

You can claim interest from a bank for delayedencashment of your outstation cheques. “If there isany delay in collection of the said (outstation) chequesbeyond the period… interest at fixed deposit rate, or ata specified rate as per the respective policy of thebanks, is to be paid to the payee of the cheques,” theNational Consumer Disputes Redressal Commissionsaid in its July 14 order.

Advocate Atul Nanda, on whose petition thelandmark judgment came, said banks would have topay interest to customers for delayed encashment oflocal cheques as well. It usually takes up to three daysto be encashed. In his consumer interest litigation,Nanda had said the delay in crediting the cheques tothe customers’ account was leading to “undueenrichment” of banks, which were earning crores ininterest on the customers’ money for the delayedperiod.

Directing the banks to comply with the orderwithin two weeks, commission chairman Justice M.B.Shah asked them to write in bold letters in everybranch’s notice board the salient features of theirpolicies on collection period of outstation chequesand interest payable in case of delay. He asked the RBIto monitor the order.

(HT/17.07.2008)

The Supreme Court has asked trial courts andHigh Courts to deal with rape cases with the utmostsensitivity and responsibility. The punishment cannotdepend upon the social status of the victim or theaccused.

Justices Arijit Pasayat and P. Sathasivam said:“Of late, crime against women in general and rape inparticular are on the increase. It is an irony that whilewe are celebrating woman’s rights in all spheres, weshow little or no concern for her honour. It is a sadreflection on the attitude of indifference of societytowards the violation of human dignity of the victimsof sex crimes.”

The Bench said: “The socio-economic status,religion, race, caste or creed of the accused or thevictim is irrelevant considerations in the sentencingpolicy. Protection of society and deterring thecriminal are the avowed object of law and that isrequired to be achieved by imposing appropriatesentence.” Justice Pasayat, writing the judgment,said: “We must remember that a rapist not only

Ignore minor flaws in victim’s evidence in rapecase : SC

violates the victim’s privacy and personal integritybut inevitably causes serious psychological as well asphysical harm. Rape is not merely a physical assault— it is often destructive of the whole personality ofthe victim.Amurderer destroys the body of his victim,a rapist degrades the very soul of the helpless female.”

The Bench said: “The court, therefore,shoulders a greater responsibility while trying anaccused on charges of rape. They must deal with suchcases with the utmost sensitivity. The courts shouldexamine the broader probabilities of a case and not getswayed by minor contradictions or insignificantdiscrepancies in the statement of the prosecutrix,which are not of a fatal nature, to throw out anotherwise reliable prosecution case.”

The Bench said: “If evidence of theprosecutrix inspires confidence, it must be relied uponwithout seeking corroboration of her statement inmaterial particulars. If, for some reason, the courtfinds it difficult to place implicit reliance on hertestimony, it may look for evidence which may lendassurance to her testimony, short of corroborationrequired in the case of an accomplice.”

The prosecutrix’s testimony must beappreciated in the background of the entire case. TheBench said: “A prosecutrix of a sex offence cannot beput on a par with an accomplice. She is in fact a victimof the crime. The Evidence Act nowhere says that herevidence cannot be accepted unless it is corroboratedin material particulars. What is necessary is that thecourt must be conscious of the fact that it is dealingwith the evidence of a person who is interested in theoutcome of the charge levelled by her.”

(Hindu /18.07.2008)

The Supreme Court is to introduce audiorecording of the proceedings of important cases.

According to Secretary-General V.K. Jain,audio recording of the proceedings and arguments,particularly in matters in which the hearing goes onfor several days, will help the judges in cross-checking arguments before delivering the judgment.

To begin with, the system will be introducedin the court of Chief Justice K.G. Balakrishnan. Afteranalysing its success, a decision will be taken toextend the facility to other court halls.

(Hindu/20.08.2008)

The Supreme Court has dismissed a TataFinance petition challenging a consumer court order,directing the company to pay more than Rs 7.55 lakh

Audio recording of court proceedings

SC tells Tata Finance to pay up for impoundingvehicle

SJA News let te r 6

If dacoits rob train, Rlys must pay : SC

Banks told to pay for delay in cheque clearance

Ruling that failure to provide proper securityto passengers during journey amounts to deficiency inservice, the Supreme Court has ordered the railwaysto compensate a couple who lost their luggage in atrain dacoity in 1999. A Bench of Justices B.N.Aggarwal and G.S. Singhvi dismissed the appeal ofthe Centre against an order of the National ConsumerDisputes Redressal Commission that had awarded Rs50,000 to Patna residentAlok Kumar.

In October 1999, Kumar and his wife weretraveling in the first class compartment ofSanghmitra Express. At Ara, five men entered thecompartment and robbed them at gun-point.

The Bench took a dig at the governmentcounsel who said incidents like dacoity were law andorder problems, which was the state’s responsibility.“What a fantastic explanation?” the judges said,adding: “You are bound to deploy armed personnel inthe trains.Attendants are supposed to ensure the doorsare locked as soon as the passengers board the train.But your attendants are busy earning money andsleeping in the pantry car.”

(HT/14.07.2008)

Banks have to credit local cheques to youraccount the same day or at the most the next day, the

in disputeresolution. She further told the participantsthat if a dispute is resolved by resorting to any methodof ADR, the mediator or conciliator and in particularthe Presiding Officer who become instrumental inresolving the dispute through ADRs gets a lot ofsatisfaction and feels elated. She having an occasionto go to U.K. in connection with the Orientationcourse on “Gender Law” gave some instances of theworking of the courts their especially the use ofADRs by the courts and stated that she was reallyimpressed by the Enthusiasm exhibited by thePresiding Officers, rival disputants and alsoAdvocates while resorting to ADR for disputeresolution.

During interactive session, every participanttook active part in the interaction on the topic withResourse person and also with the Director, StateJudicial Academy and all the participants feltextremely satisfied by the Orientation course andwanted that such programme be often organized bythe State Judicial Academy so that techniques forspeedy disposal of cases are acquired by the JudicialOfficers in order to clear the backlog of cases inalmost all the courts of the State.

At the conclusion of the orientation course, itwas felt by the Director, State Judicial Academy andResource persons as well as participants that it maybe requested to the Hon’ble Judge Incharge, andPatron-in-Chief that the Government may be asked toincorporate Section 89 of Code of Civil Procedure inthe State Code of Civil Procedure and also bringabout amendment in Order 10 C.P.C by insertingOrder 10A, 10 B and 10 C in the State C.P.C. so that itcomes in line with the C.P.C (Central) and enable thePresiding Officers to useADRs as often as possible. Itwas also felt that mediation rules may also be framedand Judicial Officers and some Advocates be gottrained by some expert in the mediation in order toprove the utility of mediation as anADR.

Lok Adalat

In the month of June 2008, 646 cases weresettled in the Lok Adalats held in the different parts ofthe State of Jammu & Kashmir. Out of these, 49 caseswere settled at pre-litigation stage. Compensation tothe tune of Rs 55.88 lacs was awarded in MotorAccident Claim cases during the month. These LokAdalats were organized by different District LegalServices Authorities / Tehsil Legal ServicesCommittees of the State. Beside this, 49 eligiblepersons were given free legal aid during the month.

SJA News let te r5

NEWS AND VIEWS

Hon’ble Mr. Justice K.S. Radhakrishnan, Chief Justiceinaugurating Mediation Centre at Leh

Procedure, which necessitates physical apperance ofaccused. However, in a few cases inability on the partof the accused to appear in person on account ofvariety of reasons renders it difficult to examine theaccused qua incriminating evidence brought onrecord by prosecution. It also results in protraction oftrial and embarrassment to the co-accused. The recentpronouncement of Hon’ble Apex Court in KeyaMukherjee v/s Magma Leasing Ltd. & anotherreported in AIR 2008 SC 1807 lays down theprocedure to be followed in such exigencies. Broadfeatures of the judgment are as under :-

On interpretation of Section 342 and 342-A ofthe old Cr.P.C the Hon’ble Apex Court had held inBibhuti Bhusan Das Gupta and Another v/s State ofWest Bengal, AIR 1969 SC 381 that the pleaderrepresenting the accused cannot be examined in placeof accused at the close of prosecution evidence. Tomitigate the hardship faced by accused in putting inpersonal appearance for his examination Parliamentfollowed the 41st report of the Law Commission andincorporated appropriate provision in Section 313 ofCentral Cr.P.C of 1973. Under this provision, the trialcourt has been vested with power to exempt theaccused from personal appearance at the stage of hisexamination. However, such discretion can beexercised only in summons cases. Judicial view takenin Usha K. Pillai, 1999(3) SCC 208 is that theexamination of accused can be dispensed with only insummons cases and the court cannot dispense with theexamination of accused in warrant cases even wherethe accused has been exempted from personalattendance.

In the instant case, the Hon’ble Apex Court,after noticing the development of law on the subject,held that the provision engrafted in Section 313 ofCentral Cr.P.C of 1973 is mainly intended to benefitthe accused. As a corollary to it the court also derivesbenefit in reaching the final conclusion. The provisionincorporates the fundamental principle of NaturalJustice enshrined in the maxim .As a general rule, the requirement of law is that theaccused must be examined in person. However, if thecourt is satisfied that the accused is genuinely facingundue hardship in remaining present in person, ahumanistic approach must be adopted to alleviate thedifficulty. The Hon’ble Apex Court noticed variousprovisions of Cr.P.C. Which enable the accused facingtrial in Warrant cases/Sessions cases to put in anywritten statement which is generally prepared by theDefence Counsel. The written statement filed by theaccused is made part of the record. Such statementsare treated as emanating directly from the accused.Therefore, answers given by the Counsel representing

Audi Alteram Partem

as compensation to the respondent for repossessinghis vehicle. A Bench headed by Justice R. V.Raveendran upheld the orders of the NationalConsumer Disputes Redressal Commission and theMaharashtra State Consumer Commission, askingthe company to also pay Rs 50,000 as cost and interestat the rate of 15 per cent to the respondent.

Challenging the Commission’s order TataFinance had said that the consumer court’s decisionreflected a general bias against finance companies.

The National Consumer Disputes RedressalCommission had observed in its order that Tata had“unjustifiably, arbitrarily and malafidely taken awaythe vehicle” of Francis Soeiro who “lost his lifesavings.” Soeiro had entered into a hire-purchaseagreement with Tata Finance in February 1999 forpurchasing a Tata 407 Bus Chasis from itsmanufacturer Telco (now Tata Motors). The companyclaimed he had defaulted in paying his installmentsfollowing which it issued notices to him.

It further said that the finance company hadtaken the possession of the vehicle only after thecomplainant had used it for two years and even duringthe period the vehicle was being run on charter forsome pharma company in Goa. However, thecompany had auctioned the vehicle at a low price, itadded.

(HT/16.07.2008)

Keya Mukherjee v. Magma Leasing & Anr.AIR 2008 SC 1807

Procedure for granting exception andanswering questionnaire where accused facingtrial in a warrant case is unable to appear inperson for being examined u/s 342 of J&K Cr.P.C.

Fairness of a Criminal trial lies in effectiveassociation of accused with the trial. In adversarialsystem of justice accused cannot be a mute spectatorthroughout the trial. It is an inviolable principle ofcriminal jurisprudence that the accused is presumedto be innocent. Prosecution is required to rebut suchpresumption by cogent, reliable and convincingevidence. The mandate of law embodied in Section342 Cr.P.C. Renders it imperative upon trial court toput all inculpatory material to the accused to enablehim to explain it. It is well settled that omission to putcircumstances appearing in prosecution evidenceagainst the accused for eliciting his explanationwarrants such incriminatory evidence to be eschewedfrom consideration. After closing of prosecutionevidence, a direct dialogue between the Judge and theaccused is contemplated by the Code of Criminal

7 SJA News let te r

CASE COMMENTS

the accused to explain the incriminatingcircumstances appearing in prosecution evidenceagainst the accused can be treated as statementsemanating from the accused who may be unable toattend in person before trial court. In appropriatecases the court can come to the rescue of an accusedwho is unable to appear in person due to heavyexpenditure involved, physical incapacity or someother hardship. Substantial compliance with therequirement of Section 313 Central Cr.P.C. 1973 canbe ensured by allowing the accused to answer thequestions through his counsel provided he files anapplication supported by an affidavit sworn by theaccused himself stating the reasons of non-appearance, an assurance that no prejudice would becaused to him by his exemption and also undertakingthat he would not raise any grievance on that score.Upon recording satisfaction of the genuineness of themotion the court shall supply the questionnaire to theAdvocate of accused and fix the time for filing thereply with an affidavit duly authenticated to the effectthat such answers were given by the accused himself.The accused shall be free to indicate that he does notwish to reply a particular question. In the event offailure on the part of the accused to return thequestionnaire duly answered within the time allottedor extended by the court, the accused shall forfeit hisright to seek personal exemption during hisexamination.

Such course is to be adopted only inexceptional exigency.

Whether the Insurer is liable to re-imburseowner, if the driving license is found to be fake. TheApex Court has held that liability of insurer toreimburse the insured, as an owner of the vehicle notonly depends upon the terms and conditions laiddown in the contract of insurance but also theprovisions of the Motor VehicleAct, 1988. The ownerof vehicle is statutorily obligated to obtain aninsurance for the vehicle to cover the third party risk.A distinction has to be borne in mind in regard to aclaim made by the insured in respect of damage of hisvehicle or filed by the owner or any passenger of thevehicle as contradistinguished from a claim made bya third party.

An owner of the vehicle is bound to makereasonable enquiry as to whether the person who is

( Bansi Lal Bhat )Spl. Judge, Anti-corruption

Jammu

National Insurance Co. v. Geeta Bhat & Ors.AIR 2008 SC 1837

authorized to drive the vehicle holds a licence or not.Such a licence not only must be an effective one butshould also be a valid one. It should be issued fordriving a category of vehicle as specified in the MotorVehicleAct and/or Rules framed thereunder.

Indisputably, in a case where the terms of thecontract of insurance are found to have been violatedby the insured, the insurer may not be held to be liablefor reimbursing the insured. So far as a driving licenceof a professional driver is concerned, the owner of thevehicle, despite taking reasonable care, might havenot been able to find out as to whether the licence wasa fake one or not. He is not expected to verify thegenuineness thereof from the Transport Offices.

The Supreme Court in this judgment hasheld that a legal fiction must be given full effect butit is equally well settled that the scope and ambit oflegal fiction should be confined to the object andpurport for which the same has been created. Whileholding the same, the Supreme Court placedreliance upon another judgment of the SupremeCourt reported in 2008 AIR SCW 208 in which ithas been held :

“...With a view to read the provisions of theAct in a proper and effective manner, we areof the opinion that literal interpretation, ifgiven, may give rise to an anomaly orabsurdity, which must be avoided. So as toenable a superior court to interpret a statutein a reasonable manner, the court must placeitself in the chair of a reasonablelegislator/author. So done, the rule ofpurposive construction have to be resortedto which would require the construction ofthe Act, in such a manner as to see that theobject of the Act fulfilled, which in turnwould lead the beneficiary under thestatutory scheme to fulfil its constitutionalobligations....”

It has further been held that the Court whileinterpreting a statue, must bear in mind that thelegislature was supposed to know law and thelegislation enacted is a reasonable one.

( Gh. Mohi-ud-Din Dar )Director

State Judicial Academy

( M. K. Sharma )Judicial Mobile Magistrate (Elect.)

Jammu

UCO Bank &Anr. v. Rajinder Lal CapoorAIR 2008 SC 1831

Edited, Printed and published by Gh. Mohi-ud-Din Dar, Director, Jammu & Kashmir State Judicial Academyon behalf of the Jammu and Kashmir State Judicial Academy, High Court Complex, Jammu / Srinagar