1.

Actio personalis moritur cum persona

Right of action dies with the person himself.

Nirbhaya Case
Jayalalitha Case
Shri Shravan Kumar v. Shri Gangaram Hospital & M.P. Gupta
Joginder Kumar Singh v. Kuber Enterprises
Income Tax Liability
Penal Actions vs. Civil Action

Eg. All penal actions.

Person specific torts (trespass), divorce.
Defamation. However, if it can be proved that defamation has a larger impact on
one’s business, etc, then litigation can be pursued after death. Income tax liability is
not protected by this maxim, as the liability is passed on to the heirs.

Joginder Kumar Seth v. Kuber Media Ltd. & Sons.

JKS was defamed by the newspaper while the matter was lis pendens. JKS died, and
the defendants claimed that as per this maxim, the suit would no longer exist.
However, JKS’s wife claimed that the defamation had affected the family business.
Maxim was not upheld, and the suit was allowed.

Shri Shrawan Kumar v. Sir Ganga Ram Hospital & Dr. MP Gupta
Plaintiff’s wife had cardiac surgery (30 year old woman). She was under the care of
MP Gupta, who administered the anti-coagulant every day. A dose was missed, and a
clot formed. She died. Husband asked for compensation for negligence. During the
trial, Dr.M.P. Gupta died.
 Court gave no compensation on behalf of the Dr. as right to action ended with his
death. While the matter was lis pendens, even MP Gupta died. NCRF said there was
no negligence. Hospital proved that due care was given to the lady.

2. Actus (act) non (not) facit reum nisi mens (guilty) sit rea (mind).
The act itself does not constitute guilt, till the mind is guilty.

Satyam and PWC, Bhopal Gas Tragedy

George
Karnataka Tamil Nadu
Three types of mens rea
Edward Coke
Iraq- Bush and Clinton
Bush and Clinton were doing Coke, then George came from Karnataka.

There should be consonance of the act. Now white collar crimes also come under this
maxim, but it usually finds its applicability in criminal law. PWC and Satyam
accountants.
Types of intent: Dolus directus(direct intent), Dolus indirectus (indirect intent), Dolus
eventualis (eventual intent Gross Negligence [long term intent]).

State of Maharashtra v. MH George

Travelling from Zurich to Manila- landed in India-(mumbai) found with 30 kgs of
gold. He pleaded ignorance of law and said he did not have any intention to commit a
wrong.However; he did not sign the declaration form at customs and therefore was
held guilty. There was mens rea in his act.

State of Karnataka v. T N Lakshmaiah

Went for a picnic with wife and child near Bangalore. Pushed them both into a
waterfall from an isolated spot. He came back home and the next day went to the
police and confessed. After six months, he woke up and said he doesn’t remember
anything. Took plea of Sec 84 of IPC (non-compos mentis). This was however
rejected by the Supreme Court. He was found to be actively engaged in the act.
3. A (From) communi (Common) observentia (observation) non est (should not be) recendum (Departure)
There should be no departure from common observance or usage.
There shouldn’t always be an attempt to interpret the law in new ways.
Lord Coke said a client goes to a lawyer to seek opinion- here “common professional opinion” should
be given.

Principal Judge, Family Court v. Nil

Section 13 of Hindu Marriage Act talks about divorce. A couple who had been married for 6 months
came seeking a divorce, the preliminary separation of 6 months was not done as mandated by section
13. The decree of divorce was not granted because of a communi observentia non est rescendum.
Advocate Aires Rodrigues v State of Goa
After 2007 LA elections, a coalition government was formed. Under Art. 164(1)(A) the executive
cannot exceed 15% of the legislation. So, there could only be 6 members. However, 11 were sworn in.
A Case was filed and the court quashed the appointments. Their decision was backed by this maxim.
Parliament Secretary- Appointed has the rank of the Minister of State
Article 164 (1A) provides for limiting the number of ministers in the state cabinets. The total number
of ministers including the Chief Minister, has to be within 15 per cent of the total number of members
of the legislative assembly of the state. Article 164 (1A) was inserted in the Constitution on the
recommendation of the National Commission for Review of the Working of the Constitution headed by
former Chief Justice of India, M.N. Venkatachaliah on misuse and drainage of public money to put a
ban on over-sized cabinet.

Various High Courts have deemed the appointment of Parliamentary Secretaries unconstitutional and
have ruled against such appointments often in the past.

In 2009, in the case of Adv. Aires Rodrigues vs The State of Goa and others (as cited in Anami
Narayan Roy vs. Union of India), a Division Bench of the Bombay High Court discussed the impact of
arbitrary State action relating to appointment of Parliament Secretaries in Goa. It held that appointing
Parliamentary Secretaries of the rank and status of a Cabinet Minister is in violation to Article 164 (1A)
of the Constitution and set aside the appointment of two Parliamentary Secretaries in the state
government

4. Boni judicus est ampliare jurisdictionem (justicium)

Good Justice is broad Justice (broadening of jurisdiction)/ good justice is broadening
of the sphere of justice.

Jefferson- Dictators
Trump v. J. Robert
Bhim Singh v. State of J&K
 Gokuldas v. Chaganlal
Coram Judice
Justicium
CorT GoBhi JuJe Wing

Criticized by Thomas Jefferson. The moment it happens, they become dictators.

Coram judice- in front of a judge/ non-coram justice- in front of a person who is not a
judge
This is done by liberal judicial activism or judicial outreach which deals with
broadening of jurisdiction. An example of judicial over-reach.
Suo moto take up cases related to rights.
Justice James Robert- Religion, Culture, Economic reasons for overturning the
executive action of Trump banning the entry of immigrants from 7 countries.

Bhim Singh v. State of J&K

Bhimsingh was illegally detained and kept in confinement for three days before he
was produced before court. The court awarded him a compensation of 50,000 rupees.
This was broadening the sphere of justice.

Wing Commander Rajiv Arora v. Union of India: Court Martial proceedings initiated
against him in the AF Code. For 3 allegations- no testimony or evidence was taken. Man
sought relief from Delhi HC. Justice Swatanter Kumar – Lack of jurisdiction of HC but HC
ruling- Good justice is broadening of jusisdiction. Even the HC can listen when there is
dismissal of justice. Court martial proceeding were lis pendens thus, in this case, not given.

Goculdas v Chaganlal& Ors.

The defendants sold their ancestral property. The property was in Punjab but the case
was filed in Kolkatta. The court said the matter can be considered even though the
subject matter is outside its purview because the parties were in its jurisdiction. Said
there was broadening of jurisdiction.

5. Casus omissus et oblivion datus disposition communis juris reliquitur

Aka Casus omissus.
A case omitted is disposed of as per the principles of common law.
 Case omitted = no law.
The casus omissus was filled by:

Acid attacks were being committed before 2013 as well but there was no law.

Vishakha v State of Rajasthan

Delivered by Justice JS Verma, gave the guidelines which filled the ‘Casus omissus’
for law against sexual harassment in the workplace.

Manoj Narula v UoI

X claimed that in 2006, a person having a criminal suit against him was made cabinet
minister, and wanted him to be disqualified. However, the person had neither been
acquitted nor convicted.
Court said that PM/CM is the repository of constitutional trust and authority and
therefore should ensure that the people they appoint should have a clean image.
The petition was dismissed.

6. Dominium non potestesse in pendents

Right to property cannot remain in pendency/ abeyance.
Property must always have an owner.

Escheat
296
Thelluson
Jarndyce
Proctor v. Bishop of Bath
Grantor
JET 296 for PG

Escheat- property goes to state. Reversion of Property [bona vacantia- ownerless

goods]
Article 296 of the Constitution- Property shall be returned to the native ruler/ GoI.
 Thelluson v Woolford
Peter Thelluson had a fortune of 5,000 pounds monthly and other estate of 60,000
pounds made a will and said that his property would be bequeathed to whoever
survived his death by a 100 years in his family. It was held that one cannot jeopardise
the ownership of property by speculation. The entire fortune was drained away

Proctor v. Bishop of Bath

Testator made a condition that his son should have a son as the first child, and that his
grandson should grow up to be a priest, and only then could his son get the property.
Court held that the property must be inherited, and it can’t be in abeyance.

Jarndyce v. Jarndyce
T v. W was the inspiration for the fictional case in Dickens’s Papers.

I refuse to do anything with the property. During lifetime of grantor, it can remain
unused. But after the death, it has to be transferred to the minor/ something.

7. Delegata potestas non potest delegari

A delegated work cannot be further delegated.
Used in constitutional law and administrative law.

Gauri
Nandita
Coke
Principal Agent- Agent delegates his authority at his own risk. No privity of contract
between principal and sub-agent.

Ordinance- law making power is the legislatures, but by an ordinance it is re

delegated to the executive

Gauri Shankar v Municipal Board of Jhunjhunu

GS, a merchant filed a petition under 301 saying Octroi duty was being levied on his
goods, when entering the town of Jhunjhunu.
 Collection of octroi was a re delegated task which was given to the state government
and it could not further sub delegate it to the municipal board. Therefore the maxim
applies.

Nandita S Kumar v State of Karnataka

12th board exam – got 78%- sent for revaluation and was hopeful of getting 90%. She
wanted revaluation for all subjects but state of Karnataka said they will release a list
of subjects for which revaluation can be applied for.
Revaluation is delegated to the state and therefore cannot be further re delegated.

8. Ei incumbit probatio qui dicit non qui negat

The onus probandi lies on he who has affirmed and not he who has denied.

Roman Law
Ranutrol v, Nanched
Subhash Chandra Mishra

Originated in Roman Law. [Civil suits- onus on plaintiff. Criminal suits- onus on
prosecution]
Exceptions- rape, trespass, domestic violence. Possession of Weapons of mass
destruction.
Terrorrists- anyone who is accused is guilty till proven innocent.
US invaded Iraq but till date, no WMDs have been found in Iraq.

Ranutrol Industries v. Nanched Singh & Vijay Ram

Industry had employed NS as a permanent employee and VR as a temp employee.
Both their services were terminated on the grounds of participating in trade unions.
Industry said they conducted a fair enquiry before termination.
Court held that there was burden on the management to prove they conducted a fair
enquiry.

Subhash Chandra Mishro v. Lokpal&Anr.

 Subhash Chandra was an engineer due to retire. There was a mala fide complaint filed
against him. Lokpal of Odisha had the burden of proof as they were alleging him of
corruption.

9. Id quod nostrum est sine facto nostro ad alium transferi non potest
What belongs to us cannot be transferred to another without our consent.
Exception – Transfer of property to State [land acquisition]
(i)Salus populi supreme lex- welfare of the people is the supreme law
(ii)Public necessity is above private necessity.

Pitti
Nano
Salu

State of Andhra Pradesh v. Govardhan Lal Pitti

GLP was the owner of a building in Hyderabad. State was a tenant using the building
as a school. GLP wanted state to vacate it, as it was old and could collapse at any
time.
GLP said State has a mala fide intent to occupy the building.
Court said State doesn’t have mala fide intent and can acquire the property (public
good over pvt good)
2 crore rupees compensation received.
Land Acquisition Act- Part II- Public Purpose
Part Vii- By Government
Kedar Nath Jadav v. State of W.B.
In 2006, WB Govt. Communists- initiated policy- industrialization houses to. Tata
Nano factory was to be put in the place. Matter acquired lot of political mileage.
Against will of farmers- was unjust. Tata gave up plan and shifted plant to Gujarat.
Court in 2016 judgment- all land back to farmers. Compensation also received as after
10 years of struggle and loss of income. Part VII- Acquisition of land by Govt. for a
Private Company
Land Acquisition Act has been revised- consent of 80% of owners must be
established. The Singrool land- fertile land were meant for rice cultivation- have
effectively destroyed the land
10. (9th According to Ma’am) Ignorentia facti excusat, ignorentia juris non excusat
ignorentia (legis reminem/ jursi non) excusat.
Ignorance of fact can be excused, but ignorance of law is not an excuse.
Private International Law- Duty of individual to be aware of the laws of a country one
travels to.
Origin in Roman Law
S.66 of the IT Act- Shreya Singhal- Bombay- Commenting on Bal Thackeray- People
not even aware
Digest of Justinian
Blackstone commentaries- First mention in modern law
Idea universal in its application.
I Tax Returns- Returns once window closes- become very problematic/ Aadhar
Linkage- India suffers from multiplicity of laws
Saudi Arabia- Can’t go there without burkha
Motor Vehicles Act, from Jan 1, 2017- Fines raised tremendously

State of Maharashtra v. MH George

Amendment in FERA on 21st of November, notified on 24th of November and he was
travelling on 27th of November- Plea taken- ignorance of law- wasn’t aware- Found to
be guilty and convicted and plea rejected Actus reus and mens rea were present but
not in the second case.

Uma Shankar Narayanan v. State of Tamil Nadu

Two Indonesians were travelling to India. They came with $ 20,000. They did not
declare it, and no one checked them while entering. The authorities stopped them and
alleged that they are smuggling the money when they were going back. 1970s mania
in the country. Booked for smuggling.
They didn’t know- but ignorance of law is not an excuse, not aware of any language
in the country. Back ground, bona fide applications- After due undertakings- allowed
to go and ignorance of law was taken as an excuse.
Exception to the maxim.
Recent amendment to law- Travel advisories given to visitors. Aware of lex loci.
11. In jure non remota cause sed proxima spectatur
Fracis Bacon- Maxim attributed to him
Criminal Law- Cause leading to death- Division
Fire Insurance-
Marine
In law, not the remote cause but the proximate cause/ immediate cause is regarded.
Causa proxima: Immediate Cause
Causa sine qua non: The cause without which the effect in question would not have
happened.
Causa causans: Cause of the cause. Eg- old wiring leading to short circuit.
Insurance companies are hair splitting on these issues. This is the prime issue in fire
insurance.

Hamilton v. Pandorf
Zinc pipes damaged-goods damaged-water held to be proximate cause of damage
Rats cut holes in pipelines of a ship- repuriated the claim by the Insurance Company
stating that damage by rats was an exception- which can be put for the most obvious
causes. Accident Insurance: Damage by third party to your vehicle. Claim was
rejected. Proximate cause: Water; Remote casue: Rats

AR Fuels Pvt. Ltd. v. National Insurance Co. Ltd. & Bank of Baroda (Consumer
Dispute Redressal
Terminology of Insurance Contracts
AR Fuels is a coal producing company located in Newai, it had insurance for damage
by fire in 2004 for 30 lakh rupees. 2006, Fire broke out-Goods damages-Claim sent to
Insurance-Surveyor sent-Insurance repudiated claim-‘free and spontaneous
combustion’ was not insured Claim should be for 5 lakhs party demanding 25 lakh.
General Insurance Company- Claim rejected by the Company on the grounds of the
spontaneous combustion.
However, the fire was caused due to spontaneous combustion (When two highly
inflammable substances kept in close proximity) which was an excpetion clause and
therefore it is the causa causans of fire. Fire was the immediate cause and it is the
spontaneous combustion. Therefore the claim was payable.
 United India Insurance v. SBK Shipping (Madras High Court- 2016)
Perils of sea- earthquake exception- tsunami effect in 2004 in Java, Andaman and
Nicobar- Company had four barges- 2 barges were in a rooftop and 2 were completely
destroyed- claim for one accepted and for one- repuriated- Tsunami was triggered by
earthquake- one of the exceptions to the Marine Insurance Policy- Earthquake caused
the Tsunami. Why did you accept claim for 2? Erroneously. Is Tsunami covered
under Perils of Sea? Giant wave- unrest- Proximate cause- Tsunami and within Perils
of Sea. Claim in MHC- For SDK Shipping should be accepted.

12. Injuria non excusat injuriam

One injury does not justify another. [eye for an eye is not justifiable]
par delicto- Equal wrong-
Law as avenger, as arbitrator
Defamation- Kejri
Encounters- Sohrabuddin, Ishrit Jahan, Instances of fake encounters by Maharashtra
Police- No due process of law
Custodial death- Ram Singh in Nirbhaya case
A rape victim can injure a rapist.
Police torture to get evidence. Section 330 & 331 of IPC-
Torture- To confess, reveal whereabouts, pay rent, pay revenue.
Verbal sparring- Arvind Kejriwal& Arun Jaitley.
Bhopal Jail break: Bhopal jail break- Students Islamic Memebers I members
escaped and found in isolated slot- Were they made to escape deliberately?

Ramlila Maidan Incident v. Home Secretary, UoI

Ram Lila Maidan- Baba Ramdev assembled over 1000 people for yoga in
connection with anti-corruption protests. Police raided the camp at 1:00 am- there
was a stampede. Judge said police could have no action on a sleeping assembly. Suo
moto PIL- Section 144 Odd time of the day-Meetings in the ground must break up-
Protesters did not pay heed-Police lockdown and assault-Verdict: Compensation
paid to family of persons who died. Contributory negligence- Right to sleep.
Woman lost her life.
 V.K Agarwal v. State of Rajasthan
Allocation of pension-Employee in irrigation department-Appointed in 1970, retired
in 1984-Pension stopped thereafter-Govt. stopped pension as CPF was not deducted
for 10 years, not eligible for pension-On inspection, it was found that non-
contribution of CPF was not deducted as Department was negligent. So fault of the
government.

Batan Singh- employee in Rajasthan Irrigation Department

1966- Contractual
1970- semi-permanent
1979- permanent
1981- retired (Benefit of CPF wanted or not? Tp make you eligeible or pension,
CPF must be deducted for minimum of 10 years)
1985- pension
1988- died
2009- suit (after 21 years)

13. Judexdamnatur cum nocensabsolvitur

A Judge is condemned when the guilty are acquitted or absolved. Complete Justice is
to be given, guilty should not be acquitted.
In the Jessica Lal case, 9 were accused and all were acquitted [Justice Bhayana]
Judicial Corruption- Embracery(to influence a juror), Barratry.
Judicial accountability - Sec 319- CrPC- when the Judge feels that certain people are
involved but not accused, the Judge has the power to summon them.

Santosh Kumar Singh v. State through CBI

Santosh killed Priyadarshini,a law Student at DU. He was the son of an IAS officer.
Benefit of doubt was given to him. He was acquitted (probably due to political
pressure).
There was some problem with the DNA reports , there was no eye witness and she
was already in police protection.

Kumari Mishra v. Chandar Roshni Dubey

 Case of Dowry harassment. When it reached the trial stage, three names were
removed from the charge sheet. 7 people were originally named in the FIR .Court
used Sec 319 to call the other three also to provide complete justice.

BabubhaiBhamabhai and Ors. V State of Gujarat and Ors.

Murder of Malubhai on 16/11/05. Charge sheet was filed. Mrs. Malubhai- petitioned-
represented by Abhishek Manu Singhvi. A letter was taken from the pocket of the
victim naming Babubhai as his murderer. It was written a year ago. Letter was
invalid- no sign of culpability-not admissible evidence.
Abuse of 319. Put him through trial and then he was acquitted. 319 should be used
with utmost circumspection.

14. Legatos violare contra jus gentiumest

It is contrary to the law of nations to violate the rights of diplomatic immunity/
ambassadors. Diplomat represtnts the sovereign.
Eg. Vienna convention on diplomatic rights.
Diplomatic enclaves- Persona non grata- Edward Snowden/ Julian Assange.

Divyani Khorbragade- Persona non grata – US – Fabricating passports, violating

labour law,arrested publicly—called to India and given Immunity.

Raymond Allan David- enclave of US in Pak- going to work in Jeep – motorist tried
to over take- RAD shot them at traffic light. RAD claimed self defence- US supported
RAD.

Ambassador of Senegal’s son – In india- has scuffle with embassy driver over lost
car keys-Had diplomatic immunity.
Dips to be treated with highest regard.

15. Rex non potest peccare

Sovereign Immunity- King can do no wrong- cannot be tried like a common man
Divine Rights Theory- Revolution Rights of Kings have come from divinity-
Bhutan and Nepal- Absolute Constitutional Monarchy- King Birendra and King
Gajendra- Royal massacre- Gyanendra- autocrat- dismissed 3 ministers- 7 political
 parties- complete shut down- made to abdicate from the throne- Nepal ceased to be
monarchy. 2007- completely exiled.
Justification of US’s acts in Vietnam War- Sov is immune from Civil suit or criminal
prosecution, US invasion of Iraq and Afghanistan.
Jalianwala Bagh Massacre’s justification as on behalf of the State.
Wikileaks- State surveillance of possible threats- Idea of privacy linked to it.
American Revolution
French Revolution
Russian Revolution- The 3 revolutions challenged the diktat. Louis XVI
Tharoor- No bad effects of colonialism are read by British students.
CM
Police
Bureaucracy
Army- AFSPA
Encounter killings- no one can book the police for charges

Kasturilalkalia Ram Jain v. State of UP- 1950s

Kasturilal was travelling, the cops stopped him and confiscated his gold and silver. It
was kept in the locker but another policeman took it and fled to Pakistan. K claimed
damages- no damages were awarded- as no cause for action.- Maxim upheld.
Boundary was porous.

Nilabati Behra v State of Orissa- 1980s J.S. Verma

Appellants son in custody- tortured-died in police custody-custodial death. Maxim not
upheld. Police acted beyond their authority. Maxim not applicable for contravention
of FR under Article 32. Not extendable.

16. Nemo debet bis vexari pro eadem causa (3 maxims starting with NEMOs)
No one shall be vexed/ tried twice for the same attempt. Article 20(2) talks about
double jeopardy.
Res Judicata- a thing is decided- no matter should be opened again – not twice for the
same case.
 OJ Simpson case- acquitted in criminal case but awarded damages in civil case –
Nicole Simpson & Ronald Goldman her BF killed both of them- Criminal acquitted
but civil liable
Autrefois convict (Already convicted)- French Terms
Autrefois acquit (Already acquitted)- French terms
Double Jeopardy (Civil & Criminal can be different)
Ne bis in idem (Not twice for the same)

Bhagwan Devi (Daughter) v. Premwati (Mother): 1990-2-3

Premwati let BD use her house for 14 years after her marriage. BD refused to vacate.
P got sons to evict BD. BD filed complaint. No paperwork to prove ownership-
eviction was correct- res judicata. Brothers ousted daughter from the house. Court
refused to hear the matter once she wanted to start . Same factual matrix.

JitendraPachal v. Intelligence Officer, Narcotics Control Bureau

Arrested in Vienna for selling contraband substances- extradited to US where he faced
54 months of punishment. Came back to India and was punished under Narcotics Act.
Not Double Jeopardy because causes are different.
Altamas Kabir- CJ- In India for import and export of contraband- 2 different instances
Imported Contraband from Nepal brought to India and exported to US- Arrested for
possession and sale of contraband in US and tried under USCCSA- 54 months.
Nepal- India-US: US Code Controlled Substance Act

Different suit for same matter under Civil & crim- permissible.

17. Nemo debet quod non habet

No one can give what one doesn’t have- property law.
Exceptions- power of attorney, negotiable instruments.
Justician used it first-Eg. Benami.
Caveat Emptor- Caveat Venditor
Fraudulent sale of property. If its bonafide- provision will be made.
Holocaust- artefacts sold by nazi’s but returned to Jews by the ICJ.
No one can give a better title to property than he himself possesses.
 Arjun Singh and Ors. V Deputy Mal Jain & Ors.
DLF constructed housing society- Model town- got approved . There were two reas of
land for public use, and DLF sold both to a spiritual organization. Residents of DLF
opposed this, saying that they had no right to sell it as it has been earmarked for
public goods and therefore ceased to be private.

DinanathBadriprasad v. ChandradevMahaprasad
Loan issues- Co-owners of a MSHB flat- disputes with ownership. Home loan-
original property papers with the bank. Judge refused to hear the case till MSHB was
made party to the case, Home loan taken- they have papers so they are owners.
Bank- original owner.

18. Nemo debetessejudex in propriasua causa

No one can be a judge in his own cause – principle of natural justice.
Bias- Personal bias, interest in subject matter, pre conceived notions, pecuniary
interests, and Departmental bias.
Dattar and Dave recused themselves from NJAC.

AK Kraipak v. UOI
It deals with a case of promotion from State administration to Union administration.
Member of Selection Board constituted for IFS. Became member of selection board
and was an applicant and was therefore instrumental in removing rivals.
Departmental bias was present- entire selection procedure cancelled.

Mineral Development Company Ltd. v. State of Bihar

99 year lease for mining- the lease license was cancelled in 6 years.
Owner alleged that the Mining minister was a political rival, and therefore got the
license cancelled due to a personal grudge.
The license was reinstated.

No one can judge a case in which he has vested interests.

Any judgement taken in such a situation would be rendered invalid.
19. Veniae facilitas incentivum est delinquendi
Facility of pardon is an incentive to crime [Lenient treatment is an incentive]
Article 72 & 161- Clemency Veeran Bai [Punitive, Retributive Reformative]
Chequered history
Pratibha Patil- Policy paralysis at her time- Dhananjay Chatterjee
Pranab- Afzal, Kasad, Yakub,etc.

Bachan Singh v. State of Punjab (Most important precedent)

Bachan Singh- Uxoricide. H served his term of life imprisonment and then was
released, started living with cousins and killed 3 people, the fourth was wounded-
gave testimony and died.
When life imprisonment, or death sentence given- there should be a reason. It laid
down two conditions – S.354 of Cr.P.C. – at time of DP, reasoning must be given
and life imprisonment must be the norm and DP the exception.
Pranab Mukherjee- 11 judges wrote that the judgments given by them for death
penalty because they had not looked at the Bachan Singh case. When you let a
hardedned criinal lose, he’ll casue a lot of harm.
Test:-
 Rarest of rare cases.
 Background of criminal be taken into consideration- look at crime and criminal
 Look at extenuating and mitigating circumstances

Raji Ramchandra v. State of Rajasthan

In a fit of anger, uxoricide and unborn child. He attacked his mother who was an
eye witness and later shifted stance and fatally wounded neighbour. The looked at
only nature of crime and forgot background. 1st time offender. Death penalty given
on rarest of rare cases.

Santosh Singh Bariyar v. State of Maharashtra

Kidnapped- ransom given- killed child, chopped to pieces and in drainage. However
death penalty was given to him. Did not fulfil the 2 fold requirement. Therefore
sentence reduced from Death penalty to life imprisonment. Bariyar- mitigating
circumstance- as his background was illiterate and wasn’t aware of the concept of
DP.
 Saibanna v. State of Karnataka
He killed his first wife. Was imprisoned, got out of jail and remarried. Suspected his
second wife of infidelity so he killed her and his child. Awarded death penalty.

Age of juveniles being lowered to 16

Also, read this

[September 7, 2012

WITHIN a few weeks of Pranab Mukherjee assuming office as the 13th President of India on
July 25, 14 former judges of eminence signed an unusual appeal addressed to the President.
The appeal, in the form of separate letters, sought his intervention to commute the death
sentences of 13 convicts, currently lodged in various jails across the country, using his
powers under Article 72 of the Constitution.

The unusual appeal does not stem from the former judges’ principled opposition to the death
penalty, though some of them may believe in its abolition personally. They have appealed to
the President because these 13 convicts were erroneously sentenced to death according to the
Supreme Court’s own admission and are currently facing the threat of imminent execution.
The Supreme Court, while deciding three recent cases, held that seven of its judgments
awarding the death sentence were rendered per incuriam(meaning out of error or ignorance)
and contrary to the binding dictum of “rarest of rare” category propounded in the Constitution
Bench judgment in Bachan Singh vs State of Punjab (1980) (2 SCC 684). The three recent
cases were Santosh Kumar Bariyar vs State of Maharashtra (2009) (6 SCC 498), Dilip
Tiwari vs State of Maharashtra (2010) (1 SCC 775), and Rajesh Kumar vs State (2011) (13
SCC 706).

The former judges also informed the President in the appeal that two prisoners who had been
wrongly sentenced to death, Ravji Rao and Surja Ram (both from Rajasthan), had been
executed on May 4, 1996, and April 7, 1997, respectively, pursuant to the flawed judgments.
These, they said, constituted the gravest known miscarriages of justice in the history of crime
and punishment in independent India. The Supreme Court’s admission of error had come too
late for them, they wrote.
They told the President that the concerns expressed in the appeal had nothing to do with the
larger debate over the desirability of retaining the death penalty. “Rather, they pertain to the
administration of the death penalty in a conscientious, fair and just manner. Executions of
persons wrongly sentenced to death will severely undermine the credibility of the criminal
justice system and the authority of the state to carry out such punishments in future,” the
appeal explained.

The judges also annexed an explanatory note to their appeal so as to convince the President
that the sentences of these 13 convicts indeed deserved to be commuted. In this, they cited the
landmark Bachan Singh vs State of Punjab, which laid down the “rarest of rare” doctrine, and
said it emphasised giving sufficient weight to the mitigating circumstances pertaining to the
criminal along with the aggravating circumstances relating to the crime. They then explained
how this Bachan Singh dictum laid down by a Constitution Bench had been reversed in a
later case.]

20. Sententia contra minorem indefinsum late nulla est

A sentence pronounced against an undefended minor is null.
(put to trial as a major)- Nirbhaya chief culprit.
Guardian ad litem- Where person on trial is a minor- Maximum punishment: 3 years
Undefended minor- not defended like a minor- Mistakenly defended as a major.

State of Missouri (17 years- Age of majority) v. Fredrick Lashley

Murder of Janie Tracy/ Guardian- She had undergone surgery – some portion of her
brain was porous. From 16, he stopped living with her. He entered her house via a
window- had a metal rod- deliberately hit her such that her brain split into two.
Took 15$, ran out with a car- Highway petrol.
Youngest person on death row- Only executed at 34.
Dispute with lawyer- Was not doing anything- Biological deformity- No mitigating
circumstance- He had not been defended as a minor- under intoxication.
Orphan- from 2

Ankush Maruti Shinde v. State of Maharashtra

 Village-5 people entered a house- threatened inmates pf house- got jewellery- drank
liquor- raped an murdered women of the house- 2 survived the attack- SC upheld
the conviction in 2009- Clemency petition- Human Right Activist lawyer- Vijay
Heramath- Writ petition- 17 years and 6 months- served as undertrial for 10 11
years
Boy worked as domestic help – killed four members in the house Age determination
test- Bone density- 18/19 years of age and 15 years at time of major. At the age of
34 years, he was released. Multiple murder & rape 2009
Ryan International Boy- Tried as adult
21. Nulla poena sine lege- No penalty without law

Difficult to fix penalty without law- Crimes like

Bavaraian Code 1813- No penalty without law

Nuremberg Trial- ex post facto laws- Nazis tried for crimes genocide to criminalize which
were tried with ex post facto laws

Cassius omissus- When there is no law

Exception natural law theory & theory of divine laws- Any action or act not specified as a
crime but against them will be made punishabel

UDHR 1948- Art.11 No one shall be punished for

Theories- Classicistic Judiciary’s function only to read the rule book- Strict interpretation and
Positivistic- Judiciary when it finds problems of cassus omissus- S.377 judgment- Now
started curative petition- positivist measure

Pending triple talaq government- One of the provisions- A bystander even if he/she reports-

Ashok Kumar Dixit v. State of U.P. (A civil wrong converted into a crime)

U.P. Gamgsters- Anti-social Activities (Prevention) Act, 1986 whereby they defined “anti-
scoail’ organization- they must be arrested- appellant was arrested for heading such a group.
Defence= mere membership and had committed no crime. Without actus reus and without
mens rea- twofold fulfilment not fulfilled.

Vijay Singh (Sub-inspector in a station) v. State of U.P.

Arrested Sahab Singh Yadav under Excise act- notorious gangster wanted by UP Police but
the inspector had let him go- Disciplinary proceedings against him

Disciplinary proceeding- Police Rules, 1991- Dereliction of Duty

Withheld integrity certificate- not a punishment under the rules.