Godhra Trial : Stay Vacated by Supreme Court

Source : NDTV

Paving the way for the trial court to pronounce its verdict in the 2002 Gujarat riots cases, the Supreme Court today vacated its stay order.

     

The Court, however, said the trial court shall not pronounce its judgement in the case relating to the killing of former Congress MP Ehsan Jaffrey in which Chief Minister Narendra Modi has been questioned by the Special Investigation Team (SIT).

    

A three-judge special bench of Justices D K Jain, P Sathasivam and Aftab Alam passed the order while vacating its May 6 stay on pronouncement of judgement.The bench said that the court can proceed with the trial in Jaffrey case as the SIT is still in the process of examining certain witnesses.

        

The Court had on May 6 stayed the pronouncement of judgement in the Gujarat riots cases following allegations of botched up investigation and demand for re-constitution of SIT that had been subsequently effected pursuant to the bench's earlier direction.

Meanwhile, amicus curiae Prashant Bhushan recused himself from the case following an application moved by the Gujarat government.

The application sought Bhushan's recusal alleging that he was biased and had strong views against the Chief Minister and the BJP government in the state.

The Court accepted Bhushan's plea for recusal and recorded the same in an order.

The bench also issued notice to the Gujarat government on the plea for transfer of the judge dealing with the Gulberg society case relating to the killing of Ehsan Jaffrey.

It was alleged that the judge was biased, favouring the accused and humiliating the witnesses including Zakia Jaffrey, wife of the slain former MP.

The Court had passed the stay order after allegations were made about lapses in investigations being conducted by SIT into the 2002 Gujarat communal riots cases.

The Court had then appointed A K Malhotra, a former DIG of CBI, to verify allegations of lapses in investigations by SIT in the case.

     

The Court had passed the direction while dealing with the plea of NGO Citizen for Justice and Peace of Teesta Setalvad and some rights activists who sought a stay of the trial and sought reconstitution of SIT for its alleged bias.

     

The Court has directed Malhotra to verify the allegations after examining the reply filed by SIT on the issue and submit his report.

    

The 10 cases being monitored by SIT on the earlier directions of the Court are--Gulberg Society, Ode, Sardarpura, Narodao Gaon, Naroda Patya, Baranpura, Machipith, Tarsali, Pandarwada and Raghavapura.

This article can be found at http://www.ndtv.com/article/india/supreme-court-vacates-stay-on-godhra-trial-62514

Raju's Bail Cancelled : Trial Expedited : Supreme Court

Source: Times of India

The Supreme Court today cancelled the bails granted to Satyam Computer founder B Ramalinga Raju, his brother B Rama Raju and four others by the Andhra Pradesh High Court in the Rs 14,000-crore accounting fraud.

Hearing the CBI plea, a Supreme Court bench comprising Justices Dalveer Bhandari and Deepak Verma today cancelled the bails and asked all six persons to surrender by November 10.

Observing that the case involved the biggest scam in the history of India, which had affected large number of shareholders, banks and financial institutions, the bench said that the High Court order of grating bail cannot be sustained.

The SC also directed the special court in Hyderabad, which is conducting the trial in the Satyam case, to conclude its proceedings by July 2011.

Earlier this month, the bench had issued a notice to Raju, directing him to file his reply on CBI's plea.

In its petition for cancellation of the bail granted to Raju by the Andhra Pradesh High Court, CBI had said that Satyam's founder and former chief "misused" the bail by meeting one of the witnesses in the case and tried to "influence" him.

CBI had filed the chargsheet running into over 10,000 pages, naming more than 250 witnesses. Such a huge volume was criticised by the court in the last hearing on October 19.

Besides the two Raju brothers, the High Court had granted bail to the four employees of the IT firm, namely Srinivas, Ramakrishna, Venkatapathi and Srisailam.

CBI had approached the apex court on September 13 and said that Raju might influence the witnesses majority of whom were his former employees.

The High Court on August 18 had allowed Raju's bail on the ground that all other accused in the case, including his brother Rama Raju, former Satyam CFO V Srinivas and three other former IT company employees G Ramakrishna, Venkatapathi Raju and Srisailam were granted bail by it.

This article can be found at http://timesofindia.indiatimes.com/india/Satyam-case-SC-cancels-Ramalinga-Rajus-bail/articleshow/6814979.cms

Find the copy of the Order here.

Power of Attorney Evidence : The Law

Many a times Power of Attorneys enter the witness box on behalf of their Principals and depose facts, either based on their personal knowledge or knowledge derived from records. Questions have often been raised about the evidentiary value of depositions by such Attorneys, more so in cases where they do not possess personal knowledge of the facts of a case.

The Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. 2005 (2) SCC 217, held as follows:

"Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

In the case of Shambhu Dutt Shastri v. State of Rajasthan 1986 2 WLN 713 (Raj) it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain AIR 1998 Raj 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.

In a recent decision, Man Kaur (dead) by LRS. v. Hartar Singh Sangha, the Supreme Court has summarised the above position, as follows;

12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.

(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.


Read the entire Judgment here.

Institution of Suit and Sole Proprietorship Concern : The Law

This snippet deals with the law relating to the institution of suits and proceedings by a Sole Proprietorship concern. A Proprietor ordinarily means a person who carries on trade or business in a name other than his. The law on this aspect is fairly well settled. No suit can be instituted by a Sole Proprietorship concern in its own name unless there are specific averments stating that the Proprietorship sues through its Proprietor. 

It has been recognized in a number of decisions that a Proprietorship concern, unlike a company or a partnership, is not a legal entity and therefore any proceedings initiated by it would be a nullity. Some of the important decisions on this aspect are compiled in the foregoing para.

It was held by the Delhi High Court in P.C. Advertising v. Municipal Corporation of Delhi 73 (1998) DLT 259 / 1998 (III) AD Delhi 133 (Click here for the Judgment) that;

"Suit filed in the name of proprietorship firm which was neither a registered company nor joint family nor a partnership firm, in the absence of any prayer to seek amendment to allow sole proprietor to sue in his own name was not maintainable"

In Miraj Advertising Corporation v. Vishaka Engineering 115 (2004) DLT 471 (Click here for Judgment) it was held that;

"A proprietorship firm has no legal entity like a registered firm.   A suit cannot be instituted in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of the proprietor."   

The above view was fortified in Svapn Construction v. IDPL Employees CGHS 127 (2006) DLT 60 (Click here for the Judgment)