Devisingh Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. s.l. kochar j.1. the appellant has preferred this appeal against the judgment dated 13th april, 1998 rendered in sessions trial no. 31/98 by the learned additional sessions judge, west nimar, sendhwa, thereby finding the appellant guilty of the offence punishable under section 302 of the indian penal code, convicted and sentenced him to suffer imprisonment for life and to pay a fine of rs. 1,000/-. in default of payment of fine the appellant is directed to suffer r.i. for one year.2. the brief history of the prosecution case is that on 22-11-97 at about 3.00 p.m. in village mandvi, the appellant assaulted his wife junabai by axe on a money dispute. she was completely beheaded. at that time she was carrying pregnancy. the incident was witnessed by the mother of the appellant namely jaidabai (p.w. 1). in the noon at about 3.00 p.m. she overheard the shouts of appellant devisingh and his wife junabai. she woke up and reached over there and saw that appellant was assaulting junabai by an axe. the head of the deceased was completely severed. she immediately rushed to call her another son kalsingh. first information report (ex. p-1) was lodged by (p.w. 2) kalsingh. on this information, the police stepped into investigation and sent the dead body for post-mortem examination to the hospital where dr. durgasingh chauhan (p.w. 6) conducted the autopsy on the dead body of junabai and issued post-mortem report (ex. p-12). according to the doctor, junabai died because of shock and heamorrhage as a result of the injury and the death was homicidal. the head of the deceased was separated from the body from the joint of mandible. internal part of brain was visible. there was communicated fracture of parietal and occipital bone. according to him, the injury was caused by sharp edged weapon, and the deceased was carrying pregnancy of seven months. the appellant was arrested on 25-11-97. after the investigation, charge-sheet was filed against the appellant.3. in his examination under section 313 of the code of criminal procedure, in answer to the last question, the appellant stated that he was mentally imbalanced at that time and he did not know anything. after trial, the learned addl. sessions judge finding the appellant guilty of the offence punishable under section 302 of the indian penal code, convicted and sentenced him as indicated hereinabove. hence this appeal by the appellant through jail.4. we have heard shri p.v. newalkar, learned counsel for the appellant appointed by the legal aid committee and shri g. desai, learned deputy advocate general, for the state and also perused the record carefully.5. the homicidal death of deceased junabai is fully established from the testimony of dr. durga singh chauhan (p.w. 6), who found severe head and other injuries on the person of the deceased and opined that the death was homicidal. there is no cross-examination on this point by the defence.6. now the other evidence against the appellant available to us is the statement of jaidabai (p.w. 1), the real mother of the appellant. she has deposed that on the date of incident, in the noon at 3.00 p.m. she was sleeping as she was suffering from fever and as such, she was in the house. the appellant went to harvest the toor-crop in the field accompanied by his wife deceased junabai. both of them had returned to the house at 3.00 p.m. she had heard the shouts of devisingh and the deceased on which, she woke-up and saw the appellant assaulting his wife junabai by an axe and separated the head of the deceased from the body. immediately thereafter, she went to call her another son kalsingh. in her cross-examination she was given suggestion that since devisingh is inside the jail, she herself, her husband and her son kalsingh were cultivating the land of his share and whenever he comes out of jail, he may ask for the possession of his land. again a question was put to this witness that she wanted to see the appellant behind the bars so that they could cultivate his land. on this question, the witness kept mum.7. in para 5, she has deposed that she was sleeping in the courtyard. she has denied the suggestion given by the defence that the appellant had come to her and informed that some body had killed junabai and that she wanted to implicate the appellant falsely for the land.8. another witness is kalsingh (p.w. 2), the brother of the appellant who had gone to the police station and lodged the first information report (ex. p-1). he has fully supported the statement of his mother jaidabai (p.w. 1). we do not find any substantial material in his statement to discredit his testimony.9. dulsingh (p.w, 3) is the village upsarpanch to whom immediate information was given about the incident by kalsingh (p.w. 2). after receiving this information, he came to the house of the appellant and they caught and tied the appellant with a tree by rope. he is also the witness of inquest and seizure-memo of axe.10. madan (p.w. 5) has deposed that he was in the field and was informed by kalsingh (p.w. 2) about killing of junabai by the appellant. in cross-examination of this witness, he denied witnessing of the incident and again repeated the same thing which he narrated in his examination-in-chief.11. dr. durgasingh chauhan (p.w. 6), who performed the postmortem examination has proved the post-mortem report (ex. p-12). his evidence has already been discussed earlier. s.s. baghel (p.w. 7), sub-inspector is a witness about recording of the first information report (ex. p-1) and further investigation.12. we find no infirmity in the testimony of jaidabai (p.w. 1), and kalsingh (p.w. 2). their statements are duly corroborated by the medical evidence of dr. durgasingh chauhan (p.w. 6) and the witness madan (p.w. 5) as also dulsingh (p.w. 3). the statement of kalsingh (p.w. 2) is also corroborated by the first information report (ex. p-l) and fully supported by the medical evidence.14. in this view of the matter, we find no substance in this appeal which is liable to be dismissed.15. consequently this appeal fails and is hereby dismissed. the judgment of conviction and the sentence imposed against the appellant are hereby affirmed. the jail authorities be informed accordingly.