Supreme Court to Examine Euthanasia Issue

Source : Indlaw

The Supreme Court decided to examine in detail the issue whether a Court can permit a person to get rid of a constant torture called life when it has become an unbearable burden without any hope. 

The Court appointed a panel of three doctors to examine a woman called Aruna, who is in coma for last about 38 years and is only clinically alive. 

Aruna, a nurse by profession is confined to bed after being raped by a ward boy who is already free after serving a sentence of seven years. 

The Supreme Court has been approached by a third party seeking permission for the life of Aruna to end. 

Suicide is an offence under Section 309 Indian Penal Code and no one is permitted under law to take his or her own life. 

A two-judge bench of the Supreme Court had once struck down Section 309 IPC on the grounds that it is atrocious to subject a man to criminal prosecution who is already fed up with life. The judgement was, however, set aside by a larger bench of the Supreme Court. 

Earlier, the Supreme Court had refused to permit Aruna to die and had directed the state to take care of her. 

The doctors’ panel will submit its report to the Supreme Court on the issue whether there is any hope of revival of Aruna.

Publication under the Land Acquisition Act : The Principles

Justice Raveendran

The Supreme Court, speaking through Justice Raveendran, in Special Deputy Collector vs J. Sivaprakasam & Ors., has discussed the principles governing publication of notification under Section 4 and / or Section 6 of the Land Acquisition Act. Section 4 of the Land Acquisition Act provides for publication of the notification in 2 newspapers circulating in the locality, one of which is required to be in the regional language. The non-compliance of the aforesaid requirements vitiate acquisition proceedings, as interested persons / land owners are deprived of their rights to file objections to the acquisition proceedings. The Supreme Court, in the aforesaid judgment, has examined the provisions of the Land Acquisition Act with regard to publication of notifications, and has observed as under;

Re: Question (i) : Publication in newspapers circulating in the locality

14. Sub-section 4(1) of the Act relates to publication of preliminary notification and relevant portion thereof is extracted below: "4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality ....." Section 4(1) of the Act requires publication of the preliminary notification by three modes : (i) publication in the official gazette; (ii) publication in two daily newspapers circulating in the locality, at least one of which being in the regional language; and (iii) causing public notice of the substance of such preliminary notification to be given at convenient places in the locality. 

15. The controversy in this case relates to the second mode, that is publication in "two daily newspapers circulating in that locality". The provision does not use the words "two daily newspapers having a wide circulation in the locality". In the absence of any definition or explanation in the Statute, the question is as to how should the words `circulating in that locality' be understood? Do they refer to newspapers having the widest circulation in the locality? Or do they refer to newspapers which are regularly sold or circulated in the locality, irrespective of numbers, even if their circulation figures are very modest? If there are nine newspapers circulating in the locality, having a market share of 25%, 20%, 15%, 12%, 10%, 8%, 5%, 3% and 2% of the total daily sales of regional newspapers in the locality, whether all of them can be termed as `newspapers circulating in the locality' or whether only newspapers with a particular minimum percentage can be described as `newspapers circulating in the locality'. Can it be said that the newspapers having 5%, 3% and 2% of total sales of newspapers, are not newspapers circulating in the locality? Can it be said that only the newspapers having the maximum market share of 25% or 20% or 15% of the total sales in the locality, could be described as newspapers circulating in the locality? Whether the total circulation figures of the newspaper are relevant or whether the circulation figures in the locality alone are relevant? From a newspaper's point of view, if its total circulation is 40,000 and out of it circulation figure for Chennai is 21,000, it can very well say that it's major circulation is in Chennai. But from the reader's point of view, if the total number of regional newspapers sold in Chennai is a million, a newspaper having a circulation of 21,000 (which is around 2%) may not be considered to be a newspaper with a wide circulation in the locality. Which perspective should be preferred? If section 4(1) is to be interpreted as requiring publication in two newspapers having reasonably wide circulation, as held by the High Court, what should be the guidelines to determine `reasonably wide circulation'? Where should the line be drawn and whether any line should be drawn are questions that may arise, if we read the words `newspapers circulating in that locality' as `newspapers having wide circulation in that locality'.

16. The purpose of publication of the notification is two fold: First is to ensure that adequate publicity is given so that land owners and persons interested will have an opportunity to file their objections under Section 5A of the Act. Second is to put the land owners/occupants on notice that government officers will be entering upon the property for carrying on the activities enumerated in section 4(2) of the Act. Section 4(1), before its amendment in 1984, required publication of the preliminary notification only in the official gazette and public notice, of the substance of the notification at convenient places in the locality. This Court, in Madhya Pradesh Housing Board vs. Mohd Shafi & Ors. 1992 (2) SCC 168 explained the object of issuing a notification under Section 4 of the Act thus: "The object of issuing a notification under Section 4 of the Act is two- fold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to he needed by the Government for the "public purpose" mentioned therein; and secondly, it authorizes the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the "public purpose" for which the acquisition proceedings are being commenced but also the "locality" where the land is situate with as full a description as possible of the land proposed to be acquired to enable the "interested" persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non-suitability of the land for the alleged "public purpose" also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad."

17. By Amendment Act 68 of 1984, section 4(1) was amended introducing the additional requirement relating to publication of the notification in two daily newspapers circulating in the locality. The purpose of requiring such newspaper publication is to give as wide a publicity to the notification as possible, as the State Gazettes do not have a wide circulation and causing public notice of the substance of the notification at convenient places in the locality would give notice only in specific pockets in the locality. Legislature therefore provided for publication in two newspapers (of which at least one being in the regional language) to have a wider reach. Having regard to the object and purpose of the provision, it is evident that publication should be in newspapers which have a reasonably good circulation in the locality. If the publication is to be made in obscure newspapers having only token or insignificant circulation, either to cut the cost of publication or by way of political or official patronage, that will defeat the very purpose of providing for publication in newspapers.

18. On the other hand, if the words `newspapers circulating in that locality' are to be interpreted in a purely literal and normal sense, they would mean newspapers having a regular and steady circulation among the general public in the locality, irrespective of the number. In that sense even a newspaper having 2% to 3% market share out of the total circulation figures for regional newspapers sold in the locality, can be considered as a newspaper "circulating in the locality". Therefore, where there is compliance with the requirement relating to publication in two daily newspapers circulating in that locality (one which at least should be in the regional language) in a technical or literal sense, but it is found that those newspapers have only a circulation share of 2% to 3% of the total number of newspaper sold in the locality, it may not be possible to mechanically invalidate the entire acquisition, on the ground that the two regional newspapers in which the notification was published were not "circulating in that locality".

19. We have held that the object and purpose of the amended section 4(1) of the Act is to provide for publication of the preliminary notification in two daily newspapers having reasonably wide circulation in the locality so that people (persons interested) in that locality may become aware of the proposals for acquisition. We have also held that publications in two newspapers having regular and steady circulation, but having a market share of only 2% to 3% of the total newspapers can not invalidate the acquisition proceedings automatically, on the ground that such publication violates the requirement of section 4(1) relating to newspaper publication. As the said two findings are slightly contradictory, it is necessary to harmonize the consequences.

20. This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bonafide publication of the notification in two newspapers which do not have a wide circulation in the locality. 

20.1) If there is failure to publish in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, without anything more, the notification under section 4(1) of the Act and the consequential acquisition proceedings will be vitiated, on the ground of non-compliance with an essential condition of section 4(1) of the Act.

20.2) If the two newspapers carrying the publication of the notification have reasonably wide circulation in the locality, (apart from the publication of the notification in the Gazette and causing public notice of the substance of the notification to be given at convenient places in the locality), then the requirements of section 4(1) are complied with and all persons concerned in the locality shall be deemed to have notice of the notification. (For this purpose, the publication need not be in newspapers having the widest or largest circulation, but it is sufficient if the publication is in newspapers having reasonably wide circulation). In that event, neither the notification under section 4(1), nor the consequential acquisition proceedings would be open to challenge, on the ground of violation of Section 4 of the Act. 

20.3) If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically. If the person aggrieved, apart from demonstrating that the two newspapers did not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not have notice of the proposed acquisition that was provided for in Section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under section 5A of the Act), the acquisition will not be vitiated on the ground of violation of section 4A of the Act.

20.4) If the person challenging the acquisition is able to establish that the notifications were deliberately and with malafides, published in newspapers having negligible circulation, to avoid notice to the persons concerned, then section 4(1) will be violated.

21. The acquiring authority need not prove actual notice of the proposal to acquire under section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notices.

21.1) When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice. 

21.2) If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.

21.3) Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfillment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.

'Hearsay' Evidence : The Law

Justice Panchal

In a recent decision, the Supreme Court in Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr., has examined and explained the law relating to the appreciation of 'hearsay' evidence. Justice J.M. Panchal, speaking for the bench has observed as under;

18.The word `evidence' is used in common parlance in three different senses : (a) as equivalent to relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as : best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. The idea of best evidence is implicit in the Evidence Act. Evidence under the Act, consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else. If it is documentary evidence, the Evidence Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature. These principles are expressed in Sections 60 and 64 of the Evidence Act.

19.The term `hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word `hearsay' is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears. 20.The argument that the rule of appreciation of hearsay evidence would not apply to determination of the question whether change of venue of polling station has materially affected the result of the election of the returned candidate, cannot be accepted for the simple reason that, this question has to be determined in a properly constituted election petition to be tried by a High Court in view of the provisions contained in Part VI of the Representation of the People Act, 1951 and Section 87(2) of the Act of 1951, which specifically provides that the provisions of the Indian Evidence Act, 1872, shall subject to the provisions of the Act, be deemed to apply in all respects to the trial of an election petition. The learned counsel for the appellant could not point out any provision of the Act of 1951, which excludes the application of rule of appreciation of hearsay evidence to the determination of question posed for consideration of this Court in the instant appeal.

21.Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross- examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.

22.The reasons why hearsay evidence is not received as relevant evidence are: (a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me", (b) truth is diluted and diminished with each repetition and (c) if permitted, gives ample scope for playing fraud by saying "someone told me that...........". It would be attaching importance to false rumour flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible.

Talwar's Plea for Copy of Closure Report denied

Source : Times of India

A special CBI court rejected on Friday Rajesh Talwar's application seeking annexures submitted by the CBI along with its closure report in the Aarushi murder case. It will hold the next hearing on January 25. 

In a setback to the doctor couple, special judge Preeti Singh rejected Talwar's application. 

The court observed that there is no provision under the law to give him the case diary or documents as he is not in the category of accused yet. 

Earlier, heated exchanges between the counsel for CBI and those appearing for parents of murdered teenager Aarushi Talwar took place in a special court here today after the agency protested their plea for copies of documents submitted by it along with the closure report, according to PTI. 

"These (documents) cannot be supplied. Uttar Pradesh police arrested him and hence technically or legally he is an accused till the court discharges or acquits him," CBI counsel R K Saini said. 

He quoted a number of Supreme Court judgements besides those of the Allahabad High Court to buttress his argument. 

Saini said nothing beyond the closure report, which has already been given to Rajesh Talwar, should be provided. 

He also said that the FIR was filed by Talwar against his servant Hemraj who was found dead. 

The Talwars had on January 11 filed an application seeking all documents submitted by the CBI in support of the closure report. 

Talwar's counsel Satish Tamta objected to his client be called an accused. 

"It is not right to call my client an accused at this stage. The court had observed last time that nobody is an accused at this stage. We are here in the capacity of first informant. To say that they have given wrong information is incorrect. We are not demanding copies of the case diary," he said. 

"What we want is documents like CFSL reports so that I can help the court. It is such a big double murder, how can the case be closed. I don't want the case closed. I am asking for the documents in the interest of justice." 

He accused the CBI of an uncooperative attitude. Meanwhile, Fatehchand Sharma, counsel for three servants who were also arrested in the case supported CBI and said Rajesh is an accused like them and hence should not be given any documents. 

"The court should order further investigation and direct the CBI to file a chargesheet," Sharma said. 

The court after hearing the matter for nearly half an hour adjourned the matter till after lunch. 

Aarushi was found murdered in her room with her throat slit at her residence on May 16, 2008. The body of Hemraj was found on the terrace the next day. 

In its closure report, CBI held Rajesh as the prime suspect but said it had insufficient evidence to file a chargesheet against him. The CBI conclusions were trashed by Rajesh and Nupur. 

The CBI had on December 29 filed a report to end the probe clearing the names of three servants -- Raj Kumar, Krishna and Vijay Mandal -- in the case.