Application for Anticipatory Bail under section 438 of the Code of Criminal Procedure 1973

 

In the Court of the Learned 7^th Addistional Session Judge, at Alipore ( W.B. 2^nd Special Court, at Alipore ), South 24 Parganas.

 

Criminal Miscellaneous Jurisdiction

 

 

Ref.: Special Case no. 10 / 2011.

( arising out of Sunderban Coastal P.S. Case no. 54 (7) of 2011 ).

 

In the matter of :-

 

An Application for Anticipatory Bail under section 438 of the Code of Criminal Procedure’ 1973;

 

- A N D -

 

In the matter of :-

 

An Order dated 20^th day of September’ 2013, passed by the Hon’ble Supreme Court of India, in Criminal Appeal no. 1493 of 2013, ( arising out of SLP ( CRL.) No. 492 of 2013 ), ( Chitta Ranjan Dalal – Versus – State of West Bengal & Anr. );

 

-          A N D –

 

 

In the matter of :-

 

Shri Nirmal Kanti Patra, Son of Jyotindra Nath Patra, of Village – Junboni, Police Station – Contai, District – Purba Medinipore, West Bengal.

…………..Accused / Petitioner.

 

-          Versus –

 

 

The State of West Bengal.

…………..Respondent / Opposite Party.

 

 

The humble petition of the above named Shri Nirmal Kanti Patra, accused / petitioner;

 

 

Most respectfully Sheweth as under :-

 

1.   That the Petitioner is a peace loving and law abiding citizen of this country, residing at the address as given in the cause title of this application.

 

2.   That the Petitioner is a School teacher, and presently posted at Purulia district of West Bengal.

 

3.   That the prosecution story is that one Chittaranjan Dalal, the Head Master of Mangal Chandra Vidyapith School, situated at Chotto Mollah Kkhali, South 24 Parganas, lodged a complaint before the Officer – in – Charge, Sunderban Coastal Police Station, alleging that your petitioner being the former Head Master has misappropriated the School Fund, and accordingly the above referred case has been started against your petitioner.

 

4.   That the petitioner placed his application under Section 438 of Cr.P.C. before the Learned Session Judge, and whereas the Learned Session Judge, was pleased to pass necessary order and grant bail to the petitioner on terms and conditions given to the petitioner to comply with thereof, on 04-08-2011, being order no.2.

 

5.   That your petitioner comply with the conditions imposed by the Learned Session Judge, till date.

 

6.   That your petitioner in accordance with the direction of the Learned Session Judge, surrendered before the Learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, and also praying for bail before the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas, and whereas the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas, granted interim bail and later confirmed the bail of your petitioner.

 

7.   That your petitioner even after confirmation of Bail by the Learned Lower Court, comply with all the conditions imposed and directed by the Learned Session Judge, till date and continuing thereof, with all earnest effort and obedience of the petitioner.

 

8.   That in the mean time, the Defacto Complainant, Shri Chitta Ranjan Dalal, approached to the Hon’ble High Court at Calcutta under it’s Criminal Miscellaneous Jurisdiction, as to place an application under Section 439(2) of Cr.P.C., for the cancellation of bail, granted by the Learned Session Judge, vide C.R.M. no. 8988 of 2011, and whereas upon the hearing of the parties the Hon’ble Chief Justice J.N.Patel and Hon’ble Justice J. Bagchi, division bench was pleased to dismissed the said application as on 18-09-2012, with the following observation “ The defacto complainant has filed the cancellation of bail. We have gone through the materials and we are satisfied that the Court below had adequate jurisdiction to grant bail. It is settled law that in the matter of grant of bail the superior court would be loath in substituting its discretion in place of the Court below in such matters. We, therefore, not impressed by the grounds taken in the cancellation petition and decline to interfere with the liberty which was granted to the opposite party by the learned Special Court. That apart there is not allegation of misuse of liberty which the opposite party / accused has been enjoying for more than a year. Hence, the application for cancellation of bail stands dismissed.”

 

9.   That thereafter the Defacto Complainant, approached before the Hon’ble Supreme Court of India, vide Criminal Appeal No. 1493 of 2013 ( arising out of SLP ( Crl. ) No. 492 of 2013 ), and whereas the Hon’ble Supreme Court on 20-09-2013, direct in the following manner as “ The Order impugned does not show any application of mind by the learned judge. Hence, we deem it expedient to remit the matter back to the learned Additional Session Judge, to pass fresh order in accordance with law on merit, who shall do so without being influenced by any of the observations made in this order. In the result, the appeal is allowed, the impugned order of the High Court and that of the Additional Sessions Judge are set aside and the matter is remitted back to the Additional Session Judge for its consideration, afresh, in accordance with law.”

 

10.                That in view of the Order of the Hon’ble Supreme Court of India, your petitioner, placed the present application before the Learned Court.

 

 

11.                That your petitioner states that your petitioner is totally innocent and did not commit any alleged offence.

 

12.                That your petitioner states that the entire allegation leveled against your petitioner in the written complaint lodged before the Sunderban Coastal Police Station, is totally false, fabricated and motivated.

 

13.                That your petitioner states that your petitioner is no way connected with the alleged offence.

 

14.                That your petitioner states that your petitioner comply with the directions and conditions of the Learned Court.

 

15.                That in view of the order dated 20-09-2013, of the Hon’ble Supreme Court of India, your petitioner begs to place this application before the Learned Court, under Section 438 of Criminal Procedure Code’ 1973, praying for anticipatory Bail on the following amongst other ground :

 

GROUND

 

i)             FOR THAT your petitioner is totally innocent and did not commit any alleged offence;

 

ii)            FOR THAT the entire allegation leveled against your petitioner in the written complaint lodged before the Sunderban Coastal Police Station, is totally false, fabricated and motivated;

 

iii)          FOR THAT your petitioner is no way connected with the alleged offence;

 

 

iv)          FOR THAT your petitioner comply with the directions and conditions of the Learned Court;

 

v)            FOR THAT your petitioner is having the permanent residence and no chance of his ascendance;

 

vi)          FOR THAT your petitioner will comply with any terms and conditions as may be imposed by the Learned Court at the time of granting anticipatory bail;

 

16.                That Unless the order as prayed for is passed your petitioner will suffer irreparable loss and injury.

 

17.                 That this application is made bona-fide in the interest of administration of  justice.

 

 

In the instance stated herein above, your Honour may be graciously pleased to allow this application for Anticipatory Bail under section 438 of the Code of Criminal Procedure’ 1973, on any condition and in case the petitioners are arrested, he will be released on bail and / or to pass such other or further order or orders as your Honour may deem fit and proper.

 

And for this act of kindness, your Petitioners, as in duty bound shall ever pray.

 

AFFIDAVIT

 

 

I, Shri Nirmal Kanti Patra, Son of Jyotindra Nath Patra, aged about ________years, by faith Hindu, by Occupation School Teacher, residing at Village – Junboni, Police Station – Contai, District – Purba Medinipore, do hereby solemnly affirm and say as follows :-

 

1 : That I am the applicant  of the present application under Section 438 of Cr.P.C. and as such I am well acquainted with the facts and circumstances of the case, I am competent to swear and affirm this affidavit.

 

2 : That the statements made in paragraphs…………………..are true to my knowledge, received from the petitioners and are verily believe to be true and those made in the rest thereof are my respectful submissions before this Learned Court.

 

 

                                                                   Deponent.

                                                                   Identified by me,

 

                                                                   Advocate.

Prepared in my office,

 

Advocate.

 

 

Solemnly affirmed before me,

This the ………..day of ………2013.

Notary Public.

 

 

Amending the Pleadings and the approach of the Judiciary

 

Amending the Pleadings and the approach of the Judiciary

The most challenging problem facing the administration of justice in India is the backlog and resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme Court. One of the provisions which contribute to it is provision related to amendment of pleadings given in Order VI, rule 17 of the Code of Civil Procedure.

Pleadings are statement in writing delivered by each party alternately to his opponent, stating what his contentions will be at the trial, giving all such details as his opponent needs to know in order to prepare his case in answer. It is an essential requirement of pleading that material fact and necessary particulars must be stated in the pleadings and the decisions cannot be based on grounds outside the pleadings. But many a time the party may find it necessary to amend his pleadings before or during the trial of the case. Rule 17 of Order VI deals with the provision of amendment of the plaint.

Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. An amendment can be by way of altering something, modifying something, deleting something.

Order VI Rule 17 reads as under:
"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

Essentials of pleadings
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an answer. Order 6 of the Civil Procedure Code, 1908 deals with pleadings in general. A plaint is the first document that initiates the pleading and thus, a lawsuit. A plaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief. It can be seen that Rule 1 defines pleading; Rule 2 lays down the fundamental principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.

Amendment of pleadings
The Court may at any stage of the proceedings allow both party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

Amendment and its objectives
As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have to be struck out. The paramount object behind Amendment is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Ultimately, the courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to parties Provisions for the amendment of pleading are contained to promote end of justice and not for defeating them. Further in the leading case of Cropper v. Smith, the object underlying the amendment of pleadings has been laid down by Bowen, L.J. in the following words: “I think it is well-established principle that the object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights”.

Leave to amend when granted
The Rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to amend will be granted so as to enable the real question in issue between parties to be raised in pleadings, where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order.

In Kisandas v. Vithoba, Batchelor J. observed as follows: “All amendments ought to be allowed which satisfy the two conditions:

1. of not working in justice to the other side, and

2. of being necessary for the purpose of determining the real questions in controversy between the parties”.

Therefore the main points to be considered before a party is allowed to amend his pleading are: firstly, whether the amendment is necessary for determination of the real question in controversy; and secondly, can the amendment be allowed without injustice to the other side. Thus, it has been held that where amendment is sought to avoid multiplicity of suits, or where the parties in the plaint are wrongly described, or where some properties are omitted from the plaint by inadvertence, the amendment should be allowed.

Leave to amend when refused
It is true that courts have very wide discretion in the matter of amendment of pleadings. But the wider the discretion, the greater is the possibility of its abuse. Ultimately it is a legal power and no legal power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai v. Vijay Kumar, the Supreme Court has rightly observed:“The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court”. Generally, in the following cases, leave to amend will be refused by the court:

1. Leave to amend will be refused when amendment is not necessary for the purpose of determining the real question in controversy between the partie. The real controversy test is the basic test. In Edevian v. Cohen, the application for amendment was rejected since it was not necessary to decide the real question in controversy.

2. Leave to amend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence. In Steward v. North Metropolitan Tramways Co., the plaintiff filed a suit for damages against the tramways Company for negligence of the company in allowing the tramways to be in a defective condition. The company denied the allegation of negligence. It was not even contended that the company was not the proper party to be sued. More than six months after the written statement was filed, the company applied for leave to amend the defence by adding the plea that under the contract entered into between the company and the local authority the liability to maintain tramways in proper condition was of the latter and, therefore, the company was not liable. On the date of the amendment application, the plaintiff's remedy against the local authority was time barred. Had the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local authority. Under the circumstances, the amendment was refused.

3.Leave to amend will be refused where the effect of the proposed amendment is totake away from the other side a legal right accrued in his favour . Every amendment should be allowed if it does not cause injustice or prejudice to the other party. In Weldon v. Neal the original action was simply for slander, and the plaintiff was non-suited. Later she sought to amend her claim by setting up, in addition to the claim for slander, fresh claims in respect of assault, false imprisonment and other causes of action, which at the time of such amendment were barred by limitation though not barred at the date of the writ. Here, then, the amendment sought to setup fresh claims, claims which had never been heard of until they had become barred; yet even in so strong a case as this Lord Esher M.R. refusing leave to amend intimated that the decision might have been the other way if there had existed special circumstances to justify it.

4.Leave to amend will be refused where the application for amendment is not made in good faith. The leave to amend is to be refused if the applicant has acted mala fide. In Patasibai v. Ratanlal, it was observed that there was no ground to allow the application for amendment of the plaint which apart from being highly belated, was clearly an afterthought fur the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue.

Amending petitions delays justice
In a major judgment that aims to thwart attempts by a large section of litigants locked in civil cases to delay proceedings for their benefit, the Supreme Court has said that the provision in the Civil Procedure Code (Order VI Rule 7) that allows improvement in averments could be done away with, as “this is the most misused” law for “dragging the proceedings indefinitely”.

The already overloaded civil courts are compelled to defer hearings, which causes delay in disposal of disputes, the court said. Applications for amendment lead to further delay, it said.

Civil courts must adhere to certain guidelines while granting adjournments, the court said. And they must assess whether the plea is counter-productive to speedy dispensation system. It must be decided whether the plea for amendment to the petition is necessary for determining the real disputed question.

The court must exercise discretion while assessing the “potentiality of prejudice or injustice likely to be caused to the other side” and award costs accordingly. A bench of justices Dalveer Bhandari and Harjit Singh Bedi also said that discretion must be used judiciously and the courts concerned must compensate the other party for “unnecessary delay and inconvenience caused to him”.

The purpose of imposing exemplary costs, the Bench explained, was to discourage mala fide amendments designed to delay legal proceedings. It compensates the other party for avoidable expenses on the litigation, which had to be incurred by him for opposing the amendment and lastly “to send a clear message that the parties have to be careful while drafting the original pleadings”.

With a view to avoid delay and to ensure speedy disposal of suits, the government deleted the provision in 1999 on Law Commission’s recommendation. But it restored the section succumbing to “public uproar”.

In his book Justice, Courts and Delays, author Arun Mohan, a senior lawyer, said 80% applications under this provision “are filed with the sole objective of delaying proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need for amendment”. Of these 100 applications, 95 are allowed and only 5 (may be even less) are rejected, the bench quoted from the book.

The Chief Justice of India (CJI) KG Balakrishnan has revealed that about 39 lakh cases including 32 lakh civil and 7.71 lakh criminal are pending in high courts. Subordinate courts have 76 lakh civil and 1.89 crore criminal matters to decide.

The average disposal per judge comes to 2,504 cases in the HCs and 1,138 in subordinate courts, if calculated on the basis of disposal in 2008 and working strength of judges as on December 31, 2008.

Thus, at least 1,547 HC judges and 23,207 subordinate court judges are needed to just clear the backlog in one year. The requirement would come down to 774 HC judges and 11,604 subordinate judges if arrears alone have to be cleared in the next two years.
The sanctioned strength of HC judges is 886 and working strength 606 on January 1. That means 280 vacancies.

General Principles
Justice P. Sathasivam, and Justice J. Chelameswar of Supreme Court of India in the case of Ramesh kumar Agarwal vs Rajmala Exports P.Ltd.& Ors.The court discussed the principles governing the Amendment of pleadings and held that "It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."

This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:

1. Surender Kumar Sharma v. Makhan Singh, at para 5:
"5. As noted here in earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."

2.North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, at para16:
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions:

a. of not working injustice to the other side, and

b. of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."

3.Usha Devi v. Rijwan Ahamd and Others, at para 13:
"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05)

"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit.

From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings."

4.Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, at paras 15 & 16:
"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts; the first part is discretionary (may) and leaves it to the court to order amendment of pleading whereas the second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."

5.Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, at para 63
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes he nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing withapplication filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

The above principles make it clear that Courts have ample power to allow the application for

amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.

Conditions
The Hon’ble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. “It is settled law that the grant of application for amendment be subject to certain conditions, namely,

(i) when the nature of it is changed by permitting amendment;

(ii) when the amendment would result introducing new cause of action and intends to prejudice the other party;

(iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”

Effects
Where an amendment is allowed, such amendment relates back to the date of the suit as originally filed. In Brij Kishore v. Smt. Mushtari Khatoon it was held that the Court must take the pleadings as they stand after amendment and leave out of consideration the unamended ones. The court must look to the pleadings as they stand after the amendment and leave out of consideration unamended ones.

Conclusion
It can be concluded that the amendment of pleading is necessary to avoid multiplicity of civil suits. But, the court cannot grant the leave of amendment at its whims and fancies. There has to be certain criterion for granting or refusing the leave, which has been laid down in case laws. It is a well known fact that delay in justice is one of the basic flaws of the Indian Judiciary and amendment of pleadings is a vital reason for that.

The Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide amendments. Amendment of pleadings cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a mechanical approach. The court should adopt a liberal approach in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

Before I conclude I would like to opine with the former Attorney General of India Mr. Soli Sorabjee that –

“Justice delayed will not only be justice denied, it will also destroy the Rule of law, - a basic feature of our Constitution. However, let us gird up the loins to protect and preserve it.”
~~~~~~~~~~~~~
# [1884] 26 Ch. D. 700
# (1909) ILR 33 Bom 644
# 1974 SCR (3) 882
# [1889] 41 Ch. D. 563
# (1886) 16 QB 178
# (1887) 19 QBD 394 at 395
# 1990 SCC (2) 42
# Arun Mohan, JUSTICE, COURTS AND DELAY (2009), Universal Publishing Co. Pvt Ltd.
# (2012) 5 SCC 337
# (2009) 10 SCC 626
# (2008) 8 SCC 511
# 1957 SCR 595
# (2008) 3 SCC 717
# 2006 (4) Suppl. SCR 259
# (2006) 4 SCC 385
# (2009) 10 SCC 84
# (2008) 8 MLJ 307 (SC)
# AIR 1976 All 399

 

Dowry death

 

304B.

 

Dowry death.

 

304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was  subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have

caused her death.

Start do right things in your Life

 #1. Start spending time with the right people. – These are the people you enjoy, who love and appreciate you, and who encourage you to improve in healthy and exciting ways. They are the ones who make you feel more alive, and not only embrace who you are now, but also embrace and embody who you want to be, unconditionally.

#2. Start facing your problems head on. – It isn’t your problems that define you, but how you react to them and recover from them. Problems will not disappear unless you take action. Do what you can, when you can, and acknowledge what you’ve done. It’s all about taking baby steps in the right direction, inch by inch. These inches count, they add up to yards and miles in the long run.

#3. Start being honest with yourself about everything. – Be honest about what’s right, as well as what needs to be changed. Be honest about what you want to achieve and who you want to become. Be honest with every aspect of your life, always. Because you are the one person you can forever count on. Search your soul, for the truth, so that you truly know who you are. Once you do, you’ll have a better understanding of where you are now and how you got here, and you’ll be better equipped to identify where you want to go and how to get there. Read The Road Less Traveled.

#4. Start making your own happiness a priority. – Your needs matter. If you don’t value yourself, look out for yourself, and stick up for yourself, you’re sabotaging yourself. Remember, it IS possible to take care of your own needs while simultaneously caring for those around you. And once your needs are met, you will likely be far more capable of helping those who need you most.

#5. Start being yourself, genuinely and proudly. – Trying to be anyone else is a waste of the person you are. Be yourself. Embrace that individual inside you that has ideas, strengths and beauty like no one else. Be the person you know yourself to be – the best version of you – on your terms. Above all, be true to YOU, and if you cannot put your heart in it, take yourself out of it.

#6. Start noticing and living in the present. – Right now is a miracle. Right now is the only moment guaranteed to you. Right now is life. So stop thinking about how great things will be in the future. Stop dwelling on what did or didn’t happen in the past. Learn to be in the ‘here and now’ and experience life as it’s happening. Appreciate the world for the beauty that it holds, right now.

#7. Start valuing the lessons your mistakes teach you. – Mistakes are okay; they’re the stepping stones of progress. If you’re not failing from time to time, you’re not trying hard enough and you’re not learning. Take risks, stumble, fall, and then get up and try again. Appreciate that you are pushing yourself, learning, growing and improving. Significant achievements are almost invariably realized at the end of a long road of failures. One of the ‘mistakes’ you fear might just be the link to your greatest achievement yet.

#8. Start being more polite to yourself. – If you had a friend who spoke to you in the same way that you sometimes speak to yourself, how long would you allow that person to be your friend? The way you treat yourself sets the standard for others. You must love who you are or no one else will.

#9. Start enjoying the things you already have. – The problem with many of us is that we think we’ll be happy when we reach a certain level in life – a level we see others operating at – your boss with her corner office, that friend of a friend who owns a mansion on the beach, etc. Unfortunately, it takes awhile before you get there, and when you get there you’ll likely have a new destination in mind. You’ll end up spending your whole life working toward something new without ever stopping to enjoy the things you have now. So take a quiet moment every morning when you first awake to appreciate where you are and what you already have.

#10. Start creating your own happiness. – If you are waiting for someone else to make you happy, you’re missing out. Smile because you can. Choose happiness. Be the change you want to see in the world. Be happy with who you are now, and let your positivity inspire your journey into tomorrow. Happiness is often found when and where you decide to seek it. If you look for happiness within the opportunities you have, you will eventually find it. But if you constantly look for something else, unfortunately, you’ll find that too. Read Stumbling on Happiness.

#11. Start giving your ideas and dreams a chance. – In life, it’s rarely about getting a chance; it’s about taking a chance. You’ll never be 100% sure it will work, but you can always be 100% sure doing nothing won’t work. Most of the time you just have to go for it! And no matter how it turns out, it always ends up just the way it should be. Either you succeed or you learn something. Win-Win.

#12. Start believing that you’re ready for the next step. – You are ready! Think about it. You have everything you need right now to take the next small, realistic step forward. So embrace the opportunities that come your way, and accept the challenges – they’re gifts that will help you to grow.

#13. Start entering new relationships for the right reasons. – Enter new relationships with dependable, honest people who reflect the person you are and the person you want to be. Choose friends you are proud to know, people you admire, who show you love and respect – people who reciprocate your kindness and commitment. And pay attention to what people do, because a person’s actions are much more important than their words or how others represent them.

#14. Start giving new people you meet a chance. – It sounds harsh, but you cannot keep every friend you’ve ever made. People and priorities change. As some relationships fade others will grow. Appreciate the possibility of new relationships as you naturally let go of old ones that no longer work. Trust your judgment. Embrace new relationships, knowing that you are entering into unfamiliar territory. Be ready to learn, be ready for a challenge, and be ready to meet someone that might just change your life forever.

#15. Start competing against an earlier version of yourself. – Be inspired by others, appreciate others, learn from others, but know that competing against them is a waste of time. You are in competition with one person and one person only – yourself. You are competing to be the best you can be. Aim to break your own personal records.

#16. Start cheering for other people’s victories. – Start noticing what you like about others and tell them. Having an appreciation for how amazing the people around you are leads to good places – productive, fulfilling, peaceful places. So be happy for those who are making progress. Cheer for their victories. Be thankful for their blessings, openly. What goes around comes around, and sooner or later the people you’re cheering for will start cheering for you.

#17. Start looking for the silver lining in tough situations. – When things are hard, and you feel down, take a few deep breaths and look for the silver lining – the small glimmers of hope. Remind yourself that you can and will grow stronger from these hard times. And remain conscious of your blessings and victories – all the things in your life that are right. Focus on what you have, not on what you haven’t.

#18. Start forgiving yourself and others. – We’ve all been hurt by our own decisions and by others. And while the pain of these experiences is normal, sometimes it lingers for too long. We relive the pain over and over and have a hard time letting go. Forgiveness is the remedy. It doesn’t mean you’re erasing the past, or forgetting what happened. It means you’re letting go of the resentment and pain, and instead choosing to learn from the incident and move on with your life.

#19. Start helping those around you. – Care about people. Guide them if you know a better way. The more you help others, the more they will want to help you. Love and kindness begets love and kindness. And so on and so forth.

#20. Start listening to your own inner voice. – If it helps, discuss your ideas with those closest to you, but give yourself enough room to follow your own intuition. Be true to yourself. Say what you need to say. Do what you know in your heart is right.

#21. Start being attentive to your stress level and take short breaks. – Slow down. Breathe. Give yourself permission to pause, regroup and move forward with clarity and purpose. When you’re at your busiest, a brief recess can rejuvenate your mind and increase your productivity. These short breaks will help you regain your sanity and reflect on your recent actions so you can be sure they’re in line with your goals.

#22. Start noticing the beauty of small moments. – Instead of waiting for the big things to happen – marriage, kids, big promotion, winning the lottery – find happiness in the small things that happen every day. Little things like having a quiet cup of coffee in the early morning, or the delicious taste and smell of a homemade meal, or the pleasure of sharing something you enjoy with someone else, or holding hands with your partner. Noticing these small pleasures on a daily basis makes a big difference in the quality of your life.

#23. Start accepting things when they are less than perfect. – Remember, ‘perfect’ is the enemy of ‘good.’ One of the biggest challenges for people who want to improve themselves and improve the world is learning to accept things as they are. Sometimes it’s better to accept and appreciate the world as it is, and people as they are, rather than to trying to make everything and everyone conform to an impossible ideal. No, you shouldn’t accept a life of mediocrity, but learn to love and value things when they are less than perfect.

#24. Start working toward your goals every single day. – Remember, the journey of a thousand miles begins with one step. Whatever it is you dream about, start taking small, logical steps every day to make it happen. Get out there and DO something! The harder you work the luckier you will become. While many of us decide at some point during the course of our lives that we want to answer our calling, only an astute few of us actually work on it. By ‘working on it,’ I mean consistently devoting oneself to the end result. Read The 7 Habits of Highly Effective People.

#25. Start being more open about how you feel. – If you’re hurting, give yourself the necessary space and time to hurt, but be open about it. Talk to those closest to you. Tell them the truth about how you feel. Let them listen. The simple act of getting things off your chest and into the open is your first step toward feeling good again.

#26. Start taking full accountability for your own life. – Own your choices and mistakes, and be willing to take the necessary steps to improve upon them. Either you take accountability for your life or someone else will. And when they do, you’ll become a slave to their ideas and dreams instead of a pioneer of your own. You are the only one who can directly control the outcome of your life. And no, it won’t always be easy. Every person has a stack of obstacles in front of them. But you must take accountability for your situation and overcome these obstacles. Choosing not to is choosing a lifetime of mere existence.

#27. Start actively nurturing your most important relationships. – Bring real, honest joy into your life and the lives of those you love by simply telling them how much they mean to you on a regular basis. You can’t be everything to everyone, but you can be everything to a few people. Decide who these people are in your life and treat them like royalty. Remember, you don’t need a certain number of friends, just a number of friends you can be certain of.

#28. Start concentrating on the things you can control. – You can’t change everything, but you can always change something. Wasting your time, talent and emotional energy on things that are beyond your control is a recipe for frustration, misery and stagnation. Invest your energy in the things you can control, and act on them now.

#29. Start focusing on the possibility of positive outcomes. – The mind must believe it CAN do something before it is capable of actually doing it. The way to overcome negative thoughts and destructive emotions is to develop opposing, positive emotions that are stronger and more powerful. Listen to your self-talk and replace negative thoughts with positive ones. Regardless of how a situation seems, focus on what you DO WANT to happen, and then take the next positive step forward. No, you can’t control everything that happens to you, but you can control how you react to things. Everyone’s life has positive and negative aspects – whether or not you’re happy and successful in the long run depends greatly on which aspects you focus on. Read The How of Happiness.

#30. Start noticing how wealthy you are right now. – Henry David Thoreau once said, “Wealth is the ability to fully experience life.” Even when times are tough, it’s always important to keep things in perspective. You didn’t go to sleep hungry last night. You didn’t go to sleep outside. You had a choice of what clothes to wear this morning. You hardly broke a sweat today. You didn’t spend a minute in fear. You have access to clean drinking water. You have access to medical care. You have access to the Internet. You can read. Some might say you are incredibly wealthy, so remember to be grateful for all the things you do have.

This is such a wonderful list. If we take little steps every day and practice these things, we can make great improvements in our lives. Share this post with your friends and loved ones. 

AGREEMENT FORM BETWEEN OWNER AND A BUILDER FOR CONSTRUCTION OF THE BUILDING

 

AGREEMENT FORM BETWEEN OWNER AND A BUILDER FOR CONSTRUCTION OF THE BUILDING

 

THIS AGREEMENT made at ....................... on this .............  day of   ..................2000, between Shri........................ S/o ....................... resident of ..............................  (hereinafter called 'the owner' which expression shall unless repugnant to the context or meaning thereof, be deemed to include his heirs, legal representatives, executors and administrators) of the ONE PART and M/s ABC Builders & Contractors, a partnership firm registered under Partnership Act, 1932 and having its registered office at .................. (hereinafter referred to as 'the builders' which expression shall unless repugnant to the context or meaning thereof, be deemed to include every partner for the time being of the said firm, the survivor or survivors or the legal representatives, executors or administrators of the last survivor of the OTHER PART.               

 

WHEREAS the first party is the owner of the plot of land admeasuring .................... sq. meters bearing plot No. ........... city survey No.               ...................... Khasra No. ..................... situate, lying and being at ...................... Tahsil and District ......................   (hereinafter referred to as the "said plot of land") and is desirous of getting a house constructed on the said plot of land.

 

AND WHEREAS the first party has appointed Shri ................. as the architect and the said architect has prepared the plans, drawings and elevations of the said intended house and the specification of the works to be done and of the materials.

 

AND WHEREAS the second party is a big contractor and is having vast experience in construction of big buildings and has agreed to construct the house on the said plot of land.

 

NOW IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:               

 

1.    The builders will construct the building on the said plot of land in conformity with the plans, drawings, specifications and elevations as prepared by the architect which has been annexed hereto and marked as Annexure A, with the material of best quality and in the most substantial and workman like manner and to the satisfaction of the architect.

 

2.    The builders hereby undertake to commence the construction within fifteen days of execution of these presents and complete the construction on or before the expiry of ................... months from the date of execution of these presents in accordance with the plans duly approved and sanctioned by the Municipal Corporation of .................................. and specifications and conditions as are set out in Annexure A hereunder written.

 

3.    If the builders fail to complete the said work within the period as stipulated in the foregoing provision, the builders shall, at the option of the owner but without prejudice to the other rights under law of the owner and other provisions herein, pay liquidated damages calculated at the rate of Rs.......... per day (but subject to a maximum of 2% of the total contract amount payable by the owner under this agreement) for the period between the said stipulated time for completion of the works. The builders hereby specifically agree and authorise the owner to deduct such liquidated damages, if any, from any installment of payment becoming due and payable to the builders in terms of this agreement.

 

4.    The owner will pay to the builders a sum of Rs............. out of which the owner shall pay to the builders weekly such sum as may be sufficient to defray the expenses incurred by the builders in respect of materials used in the works, checked and certified by the architect, Rs ......... on the certificate by the architect that the work upto first floor has been completed, the further sum of Rs ............. on the certificate by the architect that the work upto second floor has been completed and the balance shall be paid on the certificate by the architect that the said works have been completed in all respects according to the agreement and the builders have at their own expenses removed and cleared all scaffolding, fencing, unused materials and rubbish from the premises and made and prepared the bungalow fit for use and habitation and immediate occupation. However, a sum equivalent to 5 per cent of the total contract amount payable by the owner under this agreement shall be retained by the owner as retention money, which shall be paid after a period of 12 months from the date of handing over the said bungalow complete in all respects and fit for occupation. The builders hereby agree and undertake to rectify all such defects as may be found or detected during the period of 12 months. If the builders fail to rectify the defects pointed out or decline to cure such defects as pointed by the owner within fifteen days from the date of reporting to the builders, the owner shall be entitled to have such defects cured by such other agencies as it may deem fit at the entire cost and risk of the builders and utilise the retention money; Provided further that in the event of the said retention money being inadequate to meet such costs, charges and expenses incurred by the owner for curing the defects in the construction, the builders shall within 7 days of a demand in writing made by the owner make good the defect, failing which the builders shall be liable to pay the same together with the interest at 15% per annum.

 

5.    The owner shall allow free ingress to and egress from the premises to the builder’s servants, employees, sub-contractors and all other persons, who are necessary in connection with the carrying out of the works under the agreement.

 

6.    The builders shall indemnify the owner in respect of all claims, damages or expenses payable in consequence to any injury to any employee, workman, nominee, invitee while in or upon the said premises. The builders shall also be responsible for any damage to buildings, whether immediately adjacent or otherwise and any damage to roads, streets, foot-paths, bridges or ways as well as all damages caused to the buildings, and work forming the subject to this contract by frost, rain, wind or other inclemency of weather.

 

7.    If the builders abandon the contract or fail to commence the work or suspend the progress of the work for 14 days without any lawful excuse under these conditions, or fail to proceed with the works with such due diligence and fail to make such due progress as would enable d  the works to be completed within the time agreed upon or fail to remove materials from the site or to pull down and replace work for seven days after receiving from the architect written notice that the said materials or the works were defective and rejected by the said architect or neglect or fail persistently to observe and perform all or any of the acts, materials or things required by this contract to be observed and performed by the owner for seven days after written notice shall have given to the builders requiring them to observe or perform the same and the architect certifies in writing to the owner to the said effect, then and in any of the said cases the owner may, notwithstanding any previous waiver, after giving seven days notice through the said architect in writing to the builders terminate the licence in favour of the builders and in so far as it relates to the completion of the remaining construction work, but without thereby affecting the powers of the architect, or the obligations and liabilities of the builders, the whole of which shall continue in force as fully as if this Agreement had not been so determined. And the owner by his servants or agents may enter upon and take possession of the work, tools, scaffolding, sheds, machinery, power, utensils and materials lying upon the premises or in the adjoining lands or roads and use the same as its own property or may employ the same by means of its own servants and workmen in carrying on and completing the work or by employing any other contractor or other person to complete the works and the builders shall not in any way interrupt or do any act, matter or thing to prevent or hinder such other contractor or other person or persons employed for completing and finishing the works or using the material and plant for the works.

 

8.    When the said works are terminated in the manner as stipulated in the foregoing provision, the architect shall give a notice in writing to the builders to remove their surplus materials and plant, and should the builders fail to as so within a period of seven days, after receipt thereof by them, the owner may sell the same by public auction and give credit to the builders for the net amount realised. The architect shall thereafter ascertain and certify in writing, what (if any thing) shall be due or payable to or by the owner, for the value of the said building and materials so taken possession of by the owner and the expense or loss which the owner shall have been put to in procuring the work to be completed and the amount, if any, owing to the builders and the amount which shall be so certified shall thereupon be paid by the owner to the builders or by the builders to the owner, as the case may be, and the certificate of the architect shall be final and conclusive between the parties.

 

9.    The builders shall be bound to appoint an engineer competent to receive instructions from the architect from time to time, on behalf of the builders at all reasonable hours and all directions given to him by the architect shall be deemed to have been given to the builders.

 

10. The owner or his representatives shall be entitled to inspect the progress of the construction work and materials used for the construction and they shall be entitled to point out to the architect any defects in the construction work, quality of workmanship or materials d  used when such defective work is in progress or being executed or such material is brought on site. If the architect will be satisfied about the objections raised, the said architect shall certify the same in writing and direct the builders to rectify at their own cost the defect in the said construction work or remove such defective materials and the same shall be rectified or removed by the builders as directed.

 

11. All disputes or differences relating to the specifications, designs, drawings and as to quality of workmanship or material used in the work or as to any other question arising out of or relating to the contract, design, drawings, specifications, orders or otherwise in connection with the agreement or the carrying out of the works, whether during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of two arbitrators, one to be appointed by each party. The arbitrators shall appoint an umpire before entering upon the reference. The parties would cooperate and lead evidence, etc. with the arbitrators and if one of the parties does not cooperate or remains absent at the reference, the arbitrators or the umpire would be at liberty to proceed with the reference ex-parte. The arbitrators or the umpire shall keep record of the oral evidence adduced by the parties and submit the same to the court at the time of filing of the award, along with documentary evidence produced before them or him by the parties or their witnesses. The proceeding of the arbitrators or the umpire shall be recorded in English and a carbon copy whereof shall be furnished to each party. The arbitrators or umpire shall be entitled to appoint stenographer, for recording proceedings of the arbitration, consult an expert, after previous notice to the parties to the reference, the cost whereof shall be borne equally by the parties. The fees of the arbitrator appointed by a party shall be borne by the party, so appointing and the fees of the umpire and the other arbitration expenses shall be borne equally by the parties. The arbitrators shall make their award, with reasons for the decision, within six months from the date of entering upon the reference. If the arbitrators have allowed their time to expire without making an award or have delivered to any party or to the umpire a notice in writing stating that they cannot agree, the umpire shall forthwith enter on the reference. The umpire shall make his award within tour months of entering on the reference or within such extended time, as the parties may agree. The award of the arbitrators, or umpire, as the case may be, shall be final, conclusive and binding on the parties and shall not be challenged on any ground except collusion, fraud or an error apparent on the face of the award. This reference to arbitration shall be deemed to be a reference within the meaning of the Arbitration and Conciliation Act, 1996 or any statutory modification thereof. No action can be taken under this agreement for the enforcement of any right without resorting to arbitration under this clause.

 

12. This agreement shall be executed in duplicate, the original shall be retained by the owner and the duplicate by the builders.

 

IN WITNESS WHEREOF the parties have signed these presents and a duplicate thereof, the day and year first hereinabove written.

 

 

 

Signed and delivered by .................... the owner

 

Signed and delivered by M/s ABC Builders and Contractors,

the builders, by its partners

 

WITNESSES;

1.

 

2.