Elevation of New Judges to the Supreme Court

Three new judges have been cleared by the Collegium for appointment as Supreme Court Judges including Justice Ranjana Desai, who is currently presiding as a judge of the Bombay High Court. The other names cleared for elevation are Justice S. J. Mukhopadhaya, Chief Justice of Gujarat High Court and Justice J.S. Khehar, Chief Jusitce of Karnataka High Court.

The buzz says that the Union Law Ministry has received these proposals from the Supreme Court and the process of appointment is expected to be completed in two to three weeks. 

Here are the short bio's of the Judges being elevated:

Justice Ranjana Desai, Bombay High Court

She was born on 30.10.1949. She completed her graduation from the Elphinstone College Bombay in April 1970 with Economics & Politics as subjects. She took her law degree from Government Law College Bombay in April 1973. She was enrolled as an Advocate on 30.07.1973. She handled criminal and civil matters. She worked as a Junior of Justice S.C. Pratap when he was the bar. She was appointed Honorary Assistant Government Pleader in High Court in 1979 and thereafter she was appointed Assistant Government Pleader and Additional Public Prosecutor in High Court in 1983. In 1986, she was appointed as Special Public Prosecutor for Preventive Detention matters. From 1st November, 1995 she worked as Government Pleader, Appellate Side, High Court, Bombay.

She was appointed as an Additional Judge of the Bombay High Court for a period of 2 years w.e.f. 15.04.1996. She is appointed as Permanent Judge of this Hon'ble Court on 12th April, 1998.

Justice Khehar Singh, Chief Justice, Karnataka High Court

Justice Khehar was born on August 28, 1952. After graduating in science from Government College, Chandigarh in 1974, Justice Khehar was awarded the LL.B degree by the Panjab University, Chandigarh in 1977, he then acquired the LL.M. qualification from the same University in 1979, for the latter qualification, Justice Khehar was awarded the Gold Medal for having stood first in the University.

Justice Khehar was enrolled as an Advocate in 1979 and practiced mainly in the Punjab and Haryana High Court, Chandigarh, Himachal Pradesh High Court, Shimla and the Supreme Court of India, New Delhi. Justice Khehar was appointed as Additional Advocate General, Punjab, in January 1992, and then as Senior Standing Counsel, Union Territory, Chandigarh. Justice Khehar was designated as Senior Advocate in February, 1995. His Lordship remained standing counsel for Universities of the area, Corporate Bodies and a large number of companies and cooperative organizations.

Justice Khehar was elevated to the Bench of High Court of Punjab and Haryana, at Chandigarh, on February 8, 1999. Justice Khehar was appointed as Acting Chief Justice of the Punjab and Haryana High Court twice i.e., with effect from August 02, 2008, and again, with effect from November 17, 2009. Justice Khehar was elevated as Chief Justice of the High Court of Uttarakhand, at Nainital, on November 29, 2009 and thereafter he was transferred as Chief Justice of High Court of Karnataka, where he assumed hes office on August 8, 2010.

By a notification dated May 20, 2010 the Chairman of the Rajya Sabha appointed His Lordship as a member of the Judges Inquiry Committee for investigating the grounds on which the removal of Mr. Justice P.D. Dinakaran, Chief Justice of the Karnataka High Court, has been sought.

Justice Khehar is scheduled to retire on August 28, 2014.

Justice S.J. Mukhopadhaya, Chief Justice, Gujarat High Court

Mr. Justice S.J.Mukhopadhaya born on 15th March,1950, is the son of Late Sarojendu Mukherjee who was himself a leading practitioner specially in Service law in Patna High Court. He passed B.Sc. examination in 1971 from Magadh University. He obtained his LL.B Degree in 1979 from Patna University. Enrolled as an Advocate on 18th May 1979 and practised at Patna and Ranchi Bench of Patna High Court in Constitutional, Service, Civil and Criminal matters. He was designated as Senior Advocate in February, 1993

Appointed as a Permanent Judge of the Patna High Court on 8th November, 1994. As a Judge, decided several important civil and Constitutional cases including deciding the vires of Bihar Panchayat Raj Act, 1993, wherein held that the limit of reservation of 50% as upheld by the Supreme Court of India, is equally applicable, so far as article 243D and/or Panchayat Raj Act is concerned. Also held in the said judgment that reservation for the seat of "Mukhiya" or "Pramukh" or "Adhyakchh", reservation of solitary post amounts to 100% reservation which is not permissible. The permissible limit being 50%, therefore no reservation can be made for Mukhiya/Pramukh/Adhyakchh. By notification dated 14th November, 2000 became the Judge of the Jharkhand High Court w.e.f. 15th November 2000. Transferred to Madras High Court on 31.08.2006. Functioned as Acting Chief Justice of Madras High Court from 09.05.2008 to18.05.2008.

Mr. Justice S.J.Mukhopadhaya assumed charge as the Chief Justice of High Court of Gujarat on 09.12.2009.

The elevations come as the present strength of judges in the Supreme Court is 28 and in view of the fact that six judges are due to retire shortly. List judges retiring this year are as under;

• Justice V.S. Sirpurkar - Date of Retirement : August 21, 2011.
• Justice H.S. Bedi - Date of Retirement : September 4, 2011.
• Justice Mukundakam Sharma - Date of Retirement : September 17, 2011. 
• Justice Markandey Katju - Date of Retirement : September 19, 2011.
• Justice J.M. Panchal - Date of Retirement : October 5, 2011.
• Justice R.V. Raveendran - Date of Retirement : October 14, 2011.

ABA Journal : Top 100 Blawgs : Nominations

Dear Readers,

The American Bar Association ('ABA') Journal is working on its list of the 100 best legal blogs, and is seeking advice on which blawgs should be included and / or what practice areas should be represented in the Blawg 100.

Use the Blawg 100 Amici form to tell ABA about a blawg that you read regularly and you think other lawyers should know about. If there is more than one blawg you want to support, please send them additional amici through the form. Here's the link to nominate a blawg.

The Editors at ABA make the final decision about what's included in the Blawg 100 and the last date for nomination is Friday, September 9th, 2011.

I hope readers would nominate the Legal Blog for this prestigious list.

'Juvenile' - Meaning and Method for Determination of Age : The Law

Justice P. Sathasivam
Supreme Court of India

The Supreme Court in Shah Nawaz v. State of Uttar Pradesh & Anr., has examined the meaning and mode of determination of age of a delinquent 'Juvenile' under the Juvenile Justice (Care and Protection of Children) Rules, 2007. The relevant excerpts from the judgment are reproduced hereunder;

5. Before considering the merits of the claim of the appellant and the stand of the State, let us consider Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as `the Rules') which reads as under:- 

"12. Procedure to be followed in determination of Age. 

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. 

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. 

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – 

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; 

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; 

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat; 

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. 

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. 

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. 

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 

6. In the light of the above procedure to be followed in determining the age of the child or juvenile, let us consider various decisions of this Court. 

7. In Raju and Anr. vs. State of Haryana (2010) 3 SCC 235, this Court had admitted "mark sheet" as one of the proof in determining the age of the accused person. In that case, the appellants therein Raju and Mangli along with Anil alias Balli and Sucha Singh were sent up for trial for allegedly having committed an offence punishable under Section 302 read with Section 34 of the IPC. Accused Sucha Singh was found to be a juvenile and his case was separated for separate trial under the Act. Others were convicted under Section 302 read with Section 34 of the IPC and were sentenced to imprisonment for life and to pay a fine of Rs. 5,000/-. Apart from contending on the merits of the prosecution case, insofar as appellant No. 1, Raju, is concerned, the counsel appearing for him submitted that on the date of the incident that is on (31.03.1994), he was a juvenile and as per his mark sheet, wherein his date of birth was recorded as 1977, he was less than 17 years of age on the date of the incident. Learned counsel submitted that having regard to the recent decision of this Court in Hari Ram vs. State of Rajasthan & Anr., (2009) 13 SCC 211, appellant No. 1 must be held to have been a minor on the date of the incident and the provisions of the Act would apply in his case. Learned counsel further contended that the appellant No. 1 would have to be dealt with under the provisions of the said Act in keeping with the decision in the aforesaid case. On merits, while accepting the claim of the learned counsel for accused-appellant, this Court altered the conviction and sentence and convicted under Section 304 Part I read with Section 34 IPC instead of Section 302 read with Section 34 IPC. As far as appellant No. 1, namely, Raju was concerned, while accepting the entry relating to date of birth in the mark sheet referred his case to the Board in terms of Section 20 of the Act to be dealt under the provisions of the said Act in keeping with the provision of Section 15 thereof. It is clear from the said decision that this Court has accepted mark sheet as one of the proof for determining the age of an accused person. 

8. Similarly, this Court has treated the date of birth in School Leaving Certificate as valid proof in determining the age of an accused person. In Bhoop Ram vs. State of U.P. (1989) 3 SCC 1, this Court considered whether the appellant therein is entitled lesser imprisonment than imprisonment for life and should have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act, 1951 (1 of 1952). The following conclusion in para 7 is relevant which reads as under:- 

"7.....The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column "date of birth". There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars.... " 

It is clear from the above decision that this Court relied on the entry made in the column "date of birth" in the School Leaving Certificate. 

9. In Rajinder Chandra vs. State of Chhattisgarh and Anr. (2002) 2 SCC 287, this Court once again considered the entry relating to date of birth in the mark sheet and concluded as under: 

"5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case. 

10. In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this Court held that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases. 

11. In Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584 with regard to the entries made in School Leaving Certificate, this Court has observed as under:- 

"17. The school-leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 1-8-1967 and his name was struck off from the roll of the institution on 6-5- 1972. The said school-leaving certificate was not issued in the ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school-leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced." 

12. In Pradeep Kumar vs. State of U.P. 1995 Supp (4) SCC 419, this Court considered the commission of offence by persons below 16 years of age. The question before a three- Judge Bench was whether each of the appellants in those appeals was a child within the meaning of Section 2(4) of the U.P. Children Act, 1951 and as such on conviction under Section 302 read with Section 34 IPC should have been sent to an approved school for detention till the age of 18 years. At the time of granting special leave, appellant, by name, Jagdish produced High School Certificate, according to which he was about 15 years of age at the time of occurrence. Appellant - Krishan Kant produced horoscope which showed that he was 13 years of age at the time of occurrence. So far as appellant - Pradeep was concerned, a medical report was called for by this Court which disclosed that his date of birth as 07.01.1959 was acceptable on the basis of various tests conducted by the medical authorities. In the above factual scenario/details, this Court concluded as under:- 

"3. It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act" After saying so and after finding that the appellants were aged more than 30 years, this Court directed not to send them to an approved school under the U.P. Children Act for detention, while sustaining the conviction of the appellants under all the charges framed against them, quashed the sentences awarded to them and ordered their release forthwith. 

13. The applicability of the Act and the Rules in respect of "Juvenile" and "Juvenile in conflict with law" have been elaborately considered by this Court in Hari Ram (supra). 

After analyzing the Scheme of the Act and various Rules including Rule 12 and earlier decisions of this Court laid down various principles to be followed. After applying those principles and finding that the appellant therein was 16 years of age on the date of the commission of the alleged offence and had not been completed 18 years of age, remitted the matter to the Board for disposal in accordance with law.

Doctrine of Election : The Law

Justice A.K. Ganguly
Supreme Court of India

The Supreme Court in a recent decision, in Mumbai International Airport Pvt. Ltd. Vs. Golden Chariot Airport, has briefly examined the 'Doctrine of Election' and the common law doctrine of prohibiting 'approbation' and 'reprobation' as enshrined in the latin maxim qui approbat non reprobat (one who approbates cannot reprobate). The relevant extracts from the judgment are reproduced hereinbelow;

53. Now the question is whether the contesting respondent on a complete volte-face of its previous stand can urge its case of irrevocable licence before the Estate Officer and now before this Court? 

54. The answer has to be firmly in the negative. Is an action at law a game of chess? Can a litigant change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas? 

55. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel and well established in our jurisprudence also. 

56. The doctrine of election was discussed by Lord Blackburn in the decision of the House of Lords in Benjamin Scarf vs. Alfred George Jardine [(1881-82) 7 Appeal Cases 345], wherein the learned Lord formulated "...a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act...the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election." 

57. In Tinkler vs. Hilder (1849) 4 Exch 187, Parke, B., stated that where a party had received a benefit under an Order, it could not claim that it was valid for one purpose and invalid for another. (See page 190) 

58. In Clough vs. London and North Western Rail Co. [(1861-73) All ER, Reprint, 646] the Court referred to Comyn's Digest, wherein it has been stated:- 

"If a man once determines his election, it shall be determined forever." In the said case, the question was whether in a contract of fraud, whether the person on whom the fraud was practiced had elected to avoid the contract or not. The Court held that as long as such party made no election, it retained the right to determine it either way, subject to the fact that an innocent third party must not have acquired an interest in the property while the former party is deliberating. If a third party has acquired such an interest, the party who was deliberating will lose its right to rescind the contract. Once such party makes its election, it is bound to its election forever. (See page 652) 

59. In Harrison vs. Wells, 1966 (3) All ER 524, Salmon LJ, in the Court of Appeal, observed that the rule of estoppel was founded on the well-known principle that one cannot approbate and reprobate. The doctrine was further explained by Lord Justice Salmon by holding "it is founded also on this consideration, that it would be unjust to allow the man who has taken full advantage of a lease to come forward and seek to evade his obligations under the lease by denying that the purported landlord was the landlord". (See page 530) 

60. In Kok Hoong vs. Leong Cheong Kweng Mines Ltd., (1964 Appeal Cases 993), the Privy Council held that "a litigant may be shown to have acted positively in the face of the court, making an election and procuring from it an order affecting others apart from himself, in such circumstances the court has no option but to hold him to his conduct and refuse to start again on the basis that he has abandoned." (See page 1018) 

61. Justice Ashutosh Mookerjee speaking for the Division Bench of Calcutta High Court in Dwijendra Narain Roy vs. Joges Chandra De, (AIR 1924 Cal 600), held that it is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. This wholesome doctrine, the learned Judge held, applies not only to successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided the second suit grows out of the judgment in the first. 

62. It may be mentioned in this connection that all the proceedings pursued by the contesting respondent in which it took the plea of irrevocable licence was virtually in clear contradiction of its stand which it took before the Bombay High Court on 12.7.01 where it had given up the plea of `irrevocable licence'. It is on this plea that its suit again became triable by the Bombay City Civil Court and all subsequent proceedings pursued by the contesting respondent followed thereafter. 

63. This Court has also applied the doctrine of election in C. Beepathumma & Ors. vs. V.S. Kadambolithaya & Ors., 1964 (5) SCR 836, wherein this Court relied on Maitland as saying: "That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it." (Maitlands Lectures on Equity, Lecture 18). This Court also took note of the principle stated in White & Tudor's Leading Case in Equity volume 18th edition at p.444 - wherein it is stated, "Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument." 

64. In M/s New Bihar Biri Leaves Co. & Ors. vs. State of Bihar & Ors., (1981) 1 SCC 537, this Court observed that it is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim, qui approbat non reprobat (one who approbates cannot reprobate), applies in our laws too.