Height varies momentarily: High Court

Ever heard that height of a person can vary each day? Well if no, it is intriguing to take note that the Delhi High Court has taken judicial notice of a fact which it proclaims to be well known in medical jurisprudence that the height of a person varies momentarily. The High Court was dealing with a writ petition filed by an for a government position wherein the qualified required a particular height. He complained that even though he carried such height, it was recorded wrongly by the authorities which was evident from three different heights recorded by them. In these facts the High Court upheld the plea of the Petitioner, taking note of these and other circumstances as under;

13. We have on record 3 height measurements of the petitioner. The first is the height measured by the respondents, being 169 cms; the second is the height measured at the District Hospital, Deoria UP, being 170.60 cms and the third is the height measured today being 171 cms. 

14. How is it happening?

15. It is known to medical jurisprudence that as the day passes the height of every individual shortens by a few millimeters. It is recognized by medical jurisprudence that the maximum height of a person is when he gets up early morning and takes the measurement for the reason, sleeping in a horizontal position in the bed all night, loosens the limbs and in particular the vertebra of the person. Rising out of the slumber at dawn and commencing normal activity, by standing on the feet, due to gravitation pull downward, the vertebra and the other joints in the body tend to compress.

16. This explains the variation in the height of the same person if his measurements are taken during early hours of the morning and in the afternoon and late evening; 3 measurements would surface.

Have a look at the decision. 

Set-off of detention against sentence in other cases impermissible: Supreme Court

In a recent case, the Supreme Court while considering the issue as to "whether a person, who has been convicted in several cases and has suffered detention or imprisonment in connection therewith, would be entitled to the benefit of set-off in a separate case for the period of detention or imprisonment undergone by him in the other cases" has held that such a course of not permissible under law. The Court, thus, dismissed the argument of Ms. Kamini Jaiswal for the convict that he was "entitled to set off of all periods of detention unconnected with the case in which he has been convicted and sentenced".

The Supreme Court, referring the relevant provisions of the Code of Criminal Procedure to this regard, declared the law as under;

9. The wording of Section 428 is, in our view, clear and unambiguous. The heading of the Section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The Section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre conviction detention and not to imprisonment on conviction.

10. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973. 

Have a look at the decision.

Imposing inadequate sentence harmful to society: Supreme Court

In line with our earlier posts on sentencing policy and norms on proportionality of punishment, we bring to you this recently reported decision of the Supreme Court where it has been categorically declared that Courts should vouchsafe against imposition of inadequate sentence on law offenders. Dealing with a casa of dacoits convicted for rape, dacoity and murder, the Supreme Court observed as under;

14. The law regulates a social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710), this Court while refusing to reduce the death sentence observed thus:

"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."

15. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463). 

16. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

17. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

18. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

19. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held by this Court that in the matter of death sentence, the Courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.

20. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 

21. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.

22. Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

23. These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC 712].

Have a look at the decision.

MS Word violates Canadian patent: US Court of Appeal for Federal Circuit

The United States Court of Appeal for Federal Circuit in a recent decision has affirmed the findings of the United States District Court for the Eastern District of Texas and the award of damages of more than 200 million US$ in favour of a Canadian firm 'i4i' against Microsoft holding that MS Word violates the patent of i4i. The case, relating to the use of XML in the Word program, was dismissed in appeal by Microsoft on all counts and the Appellate Court also upheld the injunction given against Microsoft to soft selling infringing copies of Word anymore. 

The Court also agreed that "in this case, the district court properly considered strong circumstantial evidence that Microsoft’s infringement rendered i4i’s product obsolete for much of the custom XML market, causing i4i to lose market share and change its business strategy to survive. i4i was not required to prove that its specific customers stopped using i4i’s products because they switched to the infringing Word products" and also that "it was not an abuse of discretion for the district court to conclude that monetary damages would be inadequate. In this case, a small company was practicing its patent, only to suffer a loss of market share, brand recognition, and customer goodwill as the result of the defendant’s infringing acts. Such losses may frequently defy attempts at valuation, particularly when the infringing acts significantly change the relevant market, as occurred here. The district court found that Microsoft captured 80% of the custom XML market with its infringing Word products, forcing i4i to change its business strategy. The loss associated with these effects is particularly difficult to quantify. Difficulty in estimating monetary damages is evidence that remedies at law are inadequate."

Have a look at the decision of the United States Court of Appeal for Federal Circuit.

Protect Army from land encroachers: High Court

Dealing with a petition challenging the order of the land-revenue authorities, the High Court of Allahabad has taken note of the grim situation faced by the army; its land being constantly subjected to encroachment. Taking note of the importance of the activities undertaken by the army, the High Court called forth the authorities to ensure that such lands were protected against encroachment. The High Court observed;

It has been brought to the notice of the court by learned counsel for the Union of India that in the northern cities where Military Cantonments are existing, a large number of encroachments have been made by the influential persons, land grabbers. Several cases have been filed in this Court relating to districts of Meerut, Allahabad, Bareilly, Luckow, Varanasi, Kanpur and other areas. This is going on all over India. The Defence Estate Officer has a duty to maintain the record and take care of the defence properties. The Govt. Lands must be protected and encroachers must be ousted so that the defence land is used for military purposes only or for residential purposes of Army Personnel and Ex. Army personnel. A detailed exercise has to be carried out all over India.

The Army does not have adequate land for “military purposes” and for carrying on its day to day affairs and operations including regular training. One of the primary reason for survival of India's vibrant democracy can be said to be our safe borders. The sentinels to the nation are a shining example of dedication, devotion and self services. The same comes from our ethos as well as from training. Our 1.5 million strong army is trained well. It is the training which is intrinsically wedded with the case in hand as explained herein under.

Kautilya's thought is, if you wish to reign well train and entertain your army well. Little wonder that be it the salubrious surroundings of Srinagar, Ranikhet, Wellington, Lansdown or the harsh deserts of Samkhar, Jaisalmer or Bikaner areas, cold deserts of Leh, Laddakh, freezing North Eastern Borders, Siachin glacier sprawling over hundreds of miles are grounds of Military Training and operations. The Indian Army is spread all over the borders. India's Army, far and wide, in order to ensure adequate training, requires ample open and uninterrupted space and training grounds. As per old thoughts, if you have to develop, need of the day is effective training of your Army. 

Training is largely a peace-time activity, which is carried out in the Cantonment Areas, having large fields, camping grounds of military(Paraos), meant for military training and exercises. It means that an Army Unit stationed at Kanpur or at some other place in India shall commence its day at 5:00 A.M. with P.T. And end up at 10:00 P.M. In addition to it, Night trainings is also carried out. The dictum “More you sweat in peace the less you bleed in war”, is all too well known.

As has been informed, the training grounds are usually of three types, (1) in the near vicinity, (b) in far away ranges and (c) Camping grounds. For going from (a) point to (b), all of them put together are known as defence lands. 

The Central Government has established Cantonment Boards and has appointed Cantonment Executive Officers as well as Defence Estate Officers to protect, preserve and maintain Defence land and Estates. They are required to act in tandem with the “local military authorities” as per relevant manuals. 

After having reasoned out the importance and necessity of the defence lands, this Court cannot refrain itself from expressing apprehension, which stem out from the instant case.

The Land Mafias and Land Grabbers are encroaching, transgressing and grabbing the lands around the Defence Estates,may it be Kanpur, Lucknow, Allahabad, Bareilly, Meerut, Banglore, Bhopal, Ranikhet, Bombay, Bhopal or Sukhna lake area. It has been brought to the notice of the Court that Entertainment Centres, Marriage Halls, Posh colonies Professional Educational Institutions, run by private parties and multi storied Buildings are being established uninterruptedly on army lands.

With Burgeoning sea of humanity moving to cities in search of the leverage of better living, almost all the cities are bursting at the seams and the civilians as well as land sharks are staking hungrily at the nearby Cantonments, defence lands for expansion. That is a cause of concern for all citizens. The Army cannot be squeezed into less space and be expected to train so well that it may be able to fire on Mountains deserts,plains or render help in flooded areas. Peace keeping in Sri Lanka and others parts of the world and disturbed cities. Army always delivers beyond our expectations, whether it is war or peace. The Role of Army is known to every citizen of India.

The persons entrusted with the work to protect and preserve the defence land, especially local Military Commanders owe it to the nation to ensure that the land earmarked to the former by the latter does not go into unauthorised hands, thereby frustrating the very purpose for which these defence lands have been kept reserved, that is for the purpose of training and preparation of our Army. Any deficiency in training or preparation of the Army may not result making this Country see the risk of losing its sovereignty.

It is common knowledge as to how private residential are as sprawling malls have come up in place of training or Camping grounds all over the Country; suspectedly as a result of ineffective monitoring , negligent, careless and callous approach of the authorities entrusted with the duty to protect it. Defence lands or lands contiguous thereto in Sukhna Banglore and Ranikhet is in the news due to wrong reasons. 

Keeping in mind the avowed intent and purpose in mind and with a sense of patriotic duty, it is the duty of the Court that Union of India, through Principal Secretary, Ministry of Defence, New Delhi be directed to issue directions to its Army Commanders of all the Commands, to get all kinds of defence lands and Estates surveyed,Maps be prepared and report to the Ministry of Defence if there is any slightest unauthorised encroachment, occupancy or illegal usurpation thereof for taking legal measures to ensure that our Forces are not forced to be housed into pigeon holes, but instead, retain their original spaces and holdings so that our Army may be trained well and serve the nation well. Appropriate directions may be issued by the above authority immediately to the concerned officers in furtherance of observations made by this Court in this judgement.

Have a look at the decision.