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Law Web: Whether dying declaration can be rejected if it is not read over to declarant?
Whether dying declaration can be rejected if it is not read over to declarant?
A dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.
R.K. Deshpande, S.B. Shukre and M.G. Giratkar, JJ.
"13. The dying declaration at Exh. 24, according to us, can not be relied upon as the statement was never read over to deceased Durgabai and there is no endorsement to that effect. When the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration can not be made foundation for sustaining the conviction."
2. Similar view was taken by the another Division Bench [M/s. P.V. Hardas and Sadhana S. Jadhav, JJ.] in the case of Abdul Riyaz Abdul Bashir v. State of Maharashtra, reported in MANU/MH/0333/2012 : 2012(3) BCR (Cri) 329, setting aside the conviction for the offence punishable under Section 302 of the Indian Penal Code recorded by the Sessions Court on the basis of the dying declaration. The dying declaration was recorded by the Executive Magistrate. It was held that to rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct, and in the absence of it, the dying declaration cannot inspire confidence of the Court. Reliance was placed upon the decision of the Apex Court in the case of Shaikh Bakshu and others v. State of Maharashtra, reported in MANU/SC/7832/2007 : (2007) 11 SCC 269, and the decision of the Division Bench of this Court in Shivaji's case, cited supra.
3. The another Division Bench of this Court [M/s. A.B. Chaudhari and P.N. Deshmukh, JJ.] considered this aspect in the case of Ganpat Bakaramji Lad v. The State of Maharashtra, reported in MANU/MH/0790/2015 : 2015(4) BCR (Cri) 534. The Division Bench expressed its disagreement with the aforesaid two decisions of the Division Benches holding that it is neither the ratio nor the obiter dicta of the decision of the Apex Court in Shaikh Bakshu's case that the dying declaration has to be rejected only because the contents of it were not read over and admitted to be correct by the declarant. The Division Bench took the view that it would be unjust to reject the entire dying declaration duly proved and believed, only for the reason that it was not read over and admitted to be correct by the declarant. It confirmed the conviction under Section 302 of the Indian Penal Code recorded on the basis of the dying declaration.
"Whether a Dying Declaration can be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded?"
5. In order to consider the said question, the matter is placed before this Full Bench.
6. We have heard S/Shri Rahul Dhande, Sumit Joshi and P.R. Agrawal, the learned counsels, who assailed the dissenting view expressed by the Division Bench in the order of reference in Ganpat Lad's case, cited supra. According to them, the requirement of reading over the declaration and explaining the contents of it to the declarant and the declarant admitting the same to be true, is mandatory and the view taken by the two Division Benches of this Court in the cases of Shivaji S/o. Tukaram Patdukhe v. State of Maharashtra, reported in 2004 ALL MR (Cri) 3220, and Abdul Riyaz Abdul Bashir v. State of Maharashtra, reported in MANU/MH/0333/2012 : 2012 ALL MR (Cri) 2188, is supported by the decision of the Apex Court in the case of Shaikh Bakshu, cited supra, and the subsequent decision of the Apex Court in the case of Kanti Lal v. State of Rajasthan, reported in MANU/SC/0615/2009 : (2009) 12 SCC 498. According to them, in another decision, which is unreported, in Criminal Appeal No. 13 of 2008 [Raju S/o. Rambhau Patile and another v. State of Maharashtra] decided on 18-9-2012, the Division Bench of this Court [M/s. P.V. Hardas & A.B. Chaudhari, JJ.] has followed the view taken in Shivaji Patdukhe and Abdul Riyaz Abdul Bashir's cases.
7. The learned counsels have further relied upon the decision of another Division Bench of this Court in the case of Vilas @ Bandu Punjabrao Misal v. State of Maharashtra [M/s. B.R. Gavai & Prasanna B. Varale, JJ.], reported in 2016 ALL MR (Cri) 3838, which has expressed that the Division Bench in Ganpat Lad's case was bound by the ratio of the decision in Shaikh Bakshu and Kanti Lal's cases. The Division Bench in Abdul Riyaz Abdul Bashir's case has considered the two decisions of the Apex Court in Shaikh Bakshu and Kanti Lal's cases to hold that if the dying declaration is not read over and explained and the maker thereof has not admitted the contents thereof to be true, such a dying declaration cannot be made foundation for sustaining the conviction, is the ratio.
8. Shri Anand Deshpande, the learned Additional Public Prosecutor, and Shri Amit Kinkhede, Advocate, have relied upon the decisions of the Apex Court in the cases of Khushal Rao v. State of Bombay, reported in MANU/SC/0107/1957 : AIR 1958 SC 22; State of Rajasthan v. Kishore, reported in MANU/SC/0795/1996 : (1996) 8 SCC 217; Laxman v. State of Maharashtra, reported in MANU/SC/0707/2002 : (2002) 6 SCC 710; and Narender Kumar v. State (NCT of Delhi), reported in MANU/SC/1460/2015 : (2015) 17 SCC 451, to urge that the Apex Court has laid down the rule of caution, and merely because there is no endorsement that the declaration is not read over to the declarant and the declarant admitting the same to have been correctly recorded, that by itself would not be enough to reject the dying declaration, if on the basis of other evidence on record it is found to be trustworthy. According to them, this can at the most be one of the relevant factors to be considered depending upon the facts and circumstances of each case and validity of declaration cannot be judged on this sole factor.
9. Before proceeding to deal with the question involved here, we shall recapitulate the position of law enunciated by the several decisions of the Apex Court and of this Court.
10. The sanctity attached to the dying declaration has been considered very aptly in the two decisions of the Apex Court, one in Khushal Rao's case and another in Laxman's case, cited supra, and both these cases were from the decision of this Court. The Court considered the provision of Section 32(1) of the Indian Evidence Act, reproduced above. In Khushal Rao's case, the Apex Court holds that the statement made by a person who is in danger of losing his life, as to the cause of his death or as to the transaction which resulted in his death, becomes a relevant fact upon his death. It holds that such a person is not expected to tell lies at such serious and solemn moment. In para 3 of Laxman's case, the Apex Court holds that the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with.
11. In both the decisions cited supra, the general propositions of law are laid down. In Khushal Rao's case, the Apex Court holds that a dying declaration stands on the same footing as another piece of evidence. It cannot be laid down as a general proposition of law that a dying declaration is a weaker kind of evidence than that other pieces of evidence. There is no absolute rule of law that a dying declaration cannot form the sole basis of conviction unless corroborated by other independent evidence. In Laxman's case, it is held that the Court also must decide that the deceased was in a fit state of mind and had the opportunity to observe and identity of the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses or a Magistrate recording the statement state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A certification by the doctor is essentially a rule of caution.
12. In both the decisions, as the general propositions of law, the Apex Court has held that a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. When the statement is recorded in writing, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate, and when such a statement is recorded by a Magistrate, there is no specified statutory form for such recording. What evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.
(a) All the three dying declarations were recorded in quick succession immediately within two-and-half hours of the occurrence and shortly thereafter the declarant died.
(b) The incident occurred on 12-2-1956 and the accused could not be traced till 16-2-1956. The conduct of the accused concealing himself and evading police for number of days was held to be consistent with the case of the prosecution that he was concerned in the crime.
(c) The injuries found on the person of the deceased were consistent with the statement that he was attacked by a number of persons with the cutting and piercing weapons.
(d) No part of dying declaration was found to be false.
(e) There was no opportunity on time to tutor the dying man to tell lie.
(f) At all material times, the declarant was in a proper state of mind in spite of multiple injuries to remember the names of the assailants.
14. In the decision of the Apex Court in Paparambaka Rosamma and others v. State of A.P., reported in MANU/SC/0558/1999 : (1999) 7 SCC 695, the accused was convicted by the Sessions Court and the High Court set aside the conviction acquitting the accused persons. The conviction recorded by the Sessions Court was based upon the sole dying declaration recorded by the Judicial Magistrate, who entered the witness-box and deposed that the injured was conscious, but has not deposed that the injured was in a fit state of mind to make a statement. The Apex Court considered the question as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration. It was held that in the absence of medical certification that the injured was in a fit state of mind at the relevant time of making declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration.
15. The correctness of the view taken in the aforesaid decision fell for consideration of the Constitution Bench of the Apex Court in Laxman's case, cited supra, only to resolve the conflict between the said decision and the another decision of the Apex Court in the case of Koli Chunilal Savji and another v. State of Gujarat, reported in MANU/SC/0624/1999 : (1999) 9 SCC 562. It was held in Laxman's case that the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given. It was held that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question and had an opportunity to observe and identify the assailant. It was held that where the eye-witnesses or Magistrate recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail nor can it be said that since there is no certification of the doctor as to fitness of the mind of the declarant, the dying declaration is not acceptable.
16. The Constitution Bench ruled that the view taken in Paparambaka Rosamma's case is not the correct enunciation of law and indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind, especially when the Magistrate categorically stated in his evidence, indicating the questions he had put to the patient, and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. The Constitution Bench confirmed the view taken in Koli Chunilal Savji's case.
17. In the case of Kishore, cited by Shri Amit Kinkhede, the Apex Court was considering the dying declaration recorded by the Judicial Magistrate, on the basis of which the Sessions Court recorded the conviction under Section 302 of the Indian Penal Code. The High Court in appeal discarded the dying declaration on the admitted position that the Magistrate did not read the dying declaration after it was recorded and that there was no identification of the deceased when the declaration was recorded. The Apex Court allowed the appeal and set aside the decision of the High Court and restored the conviction and sentence imposed by the Sessions Court. The Apex Court considered the question as to whether the dying declaration was a reliable piece of evidence.
18. After taking into consideration the provision of Section 32(1) of the Evidence Act and the decision in Khushal Rao's case, the Apex Court holds in para 13 of Kishore's case that "a perusal of the answers clearly indicates and inspires us to believe that she was conscious and had given cogent, coherent and direct answers to the questions put by the Magistrate from which it could easily be inferred that she was in a mentally fit condition at that time to give the statement." The Court further holds that "the declaration reflects the true state of affairs at the time of occurrence and her statement is a truthful version and is reliable one." The Court holds in para 14 that "the tenor of the reasoning by the High Court was solely directed to criticize the Magistrate PW 1 which is uncalled for in the circumstances. Therefore the High Court was not right in doubting Exhibit P8, dying declaration recorded by Judicial Magistrate." The Court takes into consideration one important factor that no one was present with the declarant at the time of recording the dying declaration to tutor him to give any false statement or implicate anyone falsely. In para 15, the Court holds that "there was no necessity to read once over the statement to the deceased."
19. In the decision of this Court in the case of Shivaji Tukaram Patdukhe, cited supra, the Sessions Court recorded the conviction for an offence punishable under Section 302 of the Indian Penal Code relying upon the dying declaration recorded by the Special Executive Magistrate. After going through the said decision, we find that the Division Bench found inconsistency in the evidence of the two eye-witnesses, apart from the fact that the evidence was found to be suffering from falsehood. The oral dying declaration was also not accepted and the written dying declaration was discarded. It is for the first time that this Court has taken a view that the dying declaration cannot be relied upon, as the statement was never read over to the victim and there is no endorsement to that effect. It holds that when the declaration was not read over and the victim had not admitted the contents thereof to be correct, the dying declaration cannot be made a foundation for sustaining the conviction.
"18.11 ... Section 32(1) does not provide that a recorder of the dying declaration should repeat the contents of such "statement" of the deceased. Even in case of "verbal statement", the witness who heard it made, requires to repeat its contents/gist in order to bring it on record, being a relevant fact in issue, and though it is hearsay, repetition thereof is made an exception to the hearsay rule."
"18.12 If it is held to be essential requirement of law that statement/dying declaration in writing needs to be repeated/reproduced in the words spoken by the deceased as to the cause of his death, then there would be no difference between "oral dying declaration" and "written dying declaration" and in that eventuality it would not be necessary to reduce the dying declaration in writing. Such anomaly would frustrate the purport of statute. A Magistrate who records the statement is not supposed to be acquainted with the facts and circumstances of the case. He records dying declaration at the request of Police. Sometimes, Doctor records the cause of death as stated by the victim in the medical papers, and in some cases, Police officer records it. They are all independent witnesses, having no concern with the alleged incident, or with the accused/victim. They are not supposed to be acquainted with the facts and circumstances of the case. That is the reason why statements of such witnesses are never recorded under Section 161 of the Cr.P.C. by any Police officer in the course of investigation."
"18.13 ... Therefore, even if the Magistrate does not repeat the words spoken by the deceased or the contents of his statement, as to the cause of his death, in our opinion, that would not cause any prejudice to the accused...."
"18.15 ... That being so, in our opinion, expecting the Magistrate, after referring to the statement recorded by him, to repeat and/or reproduce contents thereof, would be too technical and would create violence to logic. In criminal trials, while dealing with such evidence Courts have to be rational and realistic and need not take dogmatic and hyper technical approach. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard to its duty to prevent miscarriage of justice."
"19.2 ... Whether to accept the dying declaration as a truthful evidence, and to convict the accused on the basis thereof is a matter of appreciation of evidence and the Court, where prosecution is relying solely on the dying declaration, has to be on guard that the statement of the deceased was not as a result of tutoring, prompting, vindictive or a product of imagination, apart from the satisfaction of the Court that the deceased was in a fit state of mind and that he had clear opportunity observe and identify the accused."
21. We have also seen the another decision in Abdul Riyaz Abdul Bashir's case, cited supra, delivered by the Division Bench of this Court, which followed the aforestated law laid down in the case of Shivaji Tukaram Patdukhe. This Court set aside the conviction recorded by the Sessions Court based upon the dying declaration recorded by the Executive Magistrate. The conviction was exclusively based upon the dying declaration. In para 8 of the said decision, the Court has noted that Column No. 8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent and it was left blank. The Court has held that the said column cannot be treated as an empty formality, since the deponent is not available for cross-examination, and this is a material infirmity in the dying declaration, which cannot inspire confidence of the Court, in the absence of any endorsement to that effect.
22. In the aforesaid decision of this Court, the reliance is placed upon the decision of the Apex Court in Shaikh Bakshu's case, cited supra. In Shaikh Bakshu's case, the conviction was recorded under Sections 302 and 498-A read with Section 34 of the Indian Penal Code. The High Court confirmed the view based upon the dying declaration, which it found to be credible and cogent. The Apex Court set aside the decision of the High Court. The Court considered the two dying declarations, one was recorded by the Naib Tahsildar and the other was recorded by the Police Officer. The first dying declaration was recorded between 6 and 6.10 p.m., and the another dying declaration was recorded between 7.15 and 7.30 p.m.
23. In para 10 of the decision in Shaikh Bakshu's case, the Apex Court found that the police officer, who said to have recorded the statement at 6 p.m., stated that he received the intimation regarding occurrence of the incident at 6.30 p.m. Hence, recording of dying declaration prior to it became unbelievable or impossible. In respect of the second dying declaration, the Apex Court expressed that it has not been explained as to what was the necessity of a second dying declaration, if there was already a dying declaration in existence recorded by the police officer. The Apex Court accepted the finding recorded by the Court below that the condition of the deceased was very poor, as was stated by the Medical Officer, and it was deteriorating since 6.10 p.m. The Court also noted that the mother of the deceased supported the defence version. It is in this background the Court considers that there was no mention in the dying declaration that it was read over and explained to the deceased and the Trial Court and the High Court have presumed that it was read over and explained, which view was clearly unacceptable.
24. In the judgment of reference, the Division Bench in Ganpat Lad's case has expressed its disagreement with the view taken by the Division Bench the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir. It holds that the dying declaration before it is trustworthy and is required to be fully relied upon to record conviction. It, however, notes that the dying declaration does not contain any endorsement that the same was read over and explained to the deceased and that the deceased admitted it to be correct. It holds that in view of the aforestated two decisions, it would not be possible to accept the dying declaration. In respect of the decision in Shaikh Bakshu's case, it holds that the Apex Court recorded several reasons to hold the dying declaration doubtful and it was neither the ratio nor an obiter of the decision that it was mandatory or the requirement of law or essential requirement for a dying declaration to contain an endorsement that the contents thereof were read over and explained to the deceased, who found it to be true and correct.
25. In the subsequent decision of the Apex Court in the case of Kanti Lal, cited supra, the conviction recorded by the Trial Court and confirmed by the High Court was for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code. The Apex Court maintained the order of conviction and dismissed the appeal. A written dying declaration made by the deceased to the Naib Tahsildar set up in defence, was held to be unreliable by the Trial Court as well as by the High Court and, therefore, it was a plea raised before the Apex Court that accepting the dying declaration, the accused persons should have been acquitted.
26. In Kanti Lal's case, the Court appreciated the evidence on record. The Court considered that the Naib Tahsildar examined as DW 2, stated that the dying declaration bears the thumb mark of the deceased and he signed it. He deposed that at the time of recording the statement, the mother of the deceased, PW 6, was present in the hospital, but she refused to append her signature or thumb impression upon the document. The Court considers the evidence of PW 11 Dr. Wasudeo, who proved the medical report of the deceased, but did not whisper a word in regard to recording of dying declaration by DW 2 and admitted that he could not remember whether accused No. 3 was present in the hospital at the time of recording the dying declaration. He categorically stated that the dying declaration was not recorded by DW 2, but the said document was prepared by his Reader. Relying upon the evidence of PW 6, the mother of the deceased, the Court holds that the alleged dying declaration was not recorded by DW 2 in the room of the hospital where the deceased was lying. It is in this background one of the factors considered was that the dying declaration did not bear the endorsement that it was read over and explained to the deceased.
"25. ... We find that the approach adopted by the learned Judges of the Division Bench is totally unacceptable. The earlier Division Benches in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir, [MANU/MH/0333/2012 : 2012 ALL MR (Cri) 2188] (supra) have in unequivocal terms held that unless the dying declaration is read over, explained and maker thereof admits the contents to be true, the same cannot be made a foundation for conviction. It is further to be noted that the view of the Division Bench in the case of Shivaji Tukaram Patdukhe was prior to the pronouncement of the judgment of the Apex Court in the case of Shaikh Bakshu whereas the view of the Division Bench in the case of Abdul Riyaz Abdul Bashir was after taking into consideration the law laid down by the Apex Court in the case of Shaikh Bakshu. However, the Division Bench in the case of Ganpat Bakaramji Lad (supra) has taken a view which is totally contrary to the view taken by the aforesaid two Division Benches...."
"27. Though we have serious doubt as to whether a reference was necessary, inasmuch as even an obiter dicta of the Supreme Court binds this Court, since the coordinate Bench of this Court has already referred the matter to the Hon'ble the Chief Justice for constitution of the larger Bench, we refrain from observing anything on that.
Insofar as the present appeal is concerned, we find that the view that holds the field is that of the Division Benches of this Court in the case of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir and that view is that unless the dying declaration is read over and explained and the maker thereof admits the contents to be as per the version, such a dying declaration cannot be made a foundation for conviction. The present appeal, therefore, deserves to be allowed."
(1) when it relates to cause of death.-- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
(c) Whether the Court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?
(a) The provision has been made by the Legislature, advisedly as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence.
(b) The statement made by the declarant is not on oath and is not subject to cross-examination to test its veracity.
(c) The declaration is not the product of tutoring, prompting, imagination or vindicative.
(d) In case of any doubt or suspicion, it should not be acted upon without corroborative evidence.
(e) Each case must be decided on its own facts keeping in view the circumstances in which the dying declaration is made.
31. It is the strong belief that a man will not meet his maker with a lie or falsehood in his mouth. It is only and only a "truth" which sits upon the lips of a dying man. This is what is meant and expressed by a famous maxim "Nemo moriturus praesumitur mentire", which is also known as "Latern Mortem". This is the sanctity attached to the dying declaration in the cases of Khushal Rao and Laxman, decided by the Apex Court, to which already a reference is made. If recording of the dying declaration is by an independent person, who is neither a relative nor a friend nor interested in deposing against the accused, there should be no hesitation in accepting his version on the aspects that -(a) the declarant had an opportunity to observe and identify the assailant, (b) the declarant was in a conscious and fit condition at the time of recording of statement, and (c) the declaration so recorded is truthful and voluntary in nature, unless such version is shaken in the cross-examination. In such a case, the veracity of the statements contained in the dying declaration becomes acceptable even in the absence of it being on oath and the declarant is not available for cross-examination. The absence of an endorsement in the dying declaration - (a) by a doctor regarding the fitness of mind of the declarant, or (b) that the statement was read over and explained to the declarant, who found it to be correct, cannot be the reason for holding that the dying declaration is unacceptable, if the Court is otherwise satisfied that such a dying declaration inspires confidence.
32. There is always a presumption of innocence in favour of the accused till his guilt is proved beyond reasonable doubt. This is expressed in the maxim "Praesumptiones juris sed non de jure". The Court has, therefore, to see that the statement of the declarant is recorded at the earliest opportunity to rule out the possibility of something being put in the mouth of the declarant by way of tutoring or prompting and that the statements of the declarant are not the result of leading questions put to him or imagination. The Court has to see that the statements are consistent with the natural course of events and the other facts and circumstances brought on record. In case of any doubt, the Court has to go to the corroborative circumstances and evidence, if brought on record, to find out that they are consistent only with the hypothesis to the guilt of the accused.
33. It is not possible to lay down the nature, kind, quality and quantity of the evidence which would be required to record the subjective satisfaction based upon the objective assessment about - (a) an opportunity to the declarant to observe and identify the assailant, (b) the fitness of the mental condition, and (c) the truthfulness or the voluntary nature of the statement to inspire the confidence of the Court. The rejection of the dying declaration cannot be on the solitary instance of absence of endorsement of reading over and explaining the declaration and the declarant confirming it to be true. It will always depend upon the facts and circumstances of each case. We are clearly of the view that it will be a cumulative effect of the facts and circumstances of the case, which will determine such issues. The presence or absence of a particular fact or circumstance or a situation in a given case may become significant, whereas it may become insignificant in another case. The mode and manner of appreciation of evidence differs from case to case, though the principles of appreciation of evidence may be the same. The perception of the matter in each case and the manner of the appreciation of evidence differs from person to person. Hence, there cannot be a strait-jacket formula or hard and fast rule which can be laid down.
34. We should not be construed to have laid down a law that under no circumstances the Court can look into such requirement of the dying declaration bearing an endorsement in writing. There can be numerous instances where such requirement may or may not be of significance. We dare to state few. We may consider the first example. After recording the material statements of the declarant in writing, the declarant goes in coma or collapses and becomes unfit to further recording of the statements. In such a situation, can it be said - (a) that the statements recorded lose their sanctity, and (b) that for absence of an opportunity to read over and explain the same to him to accept it as true and correct or otherwise, the same cannot be relied upon. If the answer is yes, then, in our view, it would be contrary to the sanctity attached to such statements, as has been held in the decisions of the Apex Court in the cases of Khushal Rao and Laxman. We are of the view that the absence of opportunity of reading over the statement to accept it as true or otherwise by the declarant, in such a situation, shall become insignificant to convince the Court that the statement so recorded are not truthful or voluntary.
35. We consider the aforesaid example from different point of view. If the evidence brought on record shows that after recording material part of the dying declaration in favour of the accused, put up in defence, the declarant goes in coma or collapses or becomes unfit to record further statement and the dying declaration contains an endorsement that it was read over and explained to the declarant who found it to be true and correct. In such a situation, the question arises as to the acceptability of such dying declaration. In our view, the presence of such endorsement becomes significant and will create a doubt about its acceptability.
36. One more example considered by the Full Bench of this Court in the case of Ramesh Gyanoba Kamble, cited supra, can be highlighted in this regard. It is held in the said decision that if the statement/dying declaration in writing needs to be repeated/reproduced in the words spoken by the deceased as to the cause of his death, then there would be no difference between the oral dying declaration and the written dying declaration, and in that eventuality, it would be necessary to reduce the dying declaration into writing. Such anomaly would frustrate the purpose of the Statute. In our view, therefore, it is not possible to apply different yardsticks to judge - (a) the state of mind of the declarant, and (b) the truthfulness and voluntary nature of the statement made by the declarant in the oral dying declaration and the written dying declaration.
37. Normally, a dying declaration is to be recorded in the language of the declarant. However, there is no prohibition to record such declaration in the language other than the language of the declarant and there cannot be a rejection of it on this count. If an independent witness records such declaration, the requirement of reading over and explaining it in vernacular to the declarant by another person and the declarant accepting it to be true and correct may assume great significance for its acceptability. In such a situation, the Court may be justified in looking for such endorsement in a written dying declaration.
38. Neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribe any particular format in which a dying declaration is to be recorded. It can be oral as well as written. In case of oral dying declaration, the question of existence or insistence upon reading over and explaining the declaration to the deceased does not arise. If that be so, how can such insistence be in respect of written dying declaration? It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. We are, therefore, unable to hold such requirement as mandatory and that in the absence of it, the dying declaration would become unreliable or unsustainable. We, therefore, subscribe to such a view taken in the referring judgment in the case of Ganpat Lad.
"13. ... The trial court, however, held the dying declaration to be credible because the Medical Officer was present when the dying declaration was recorded. There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable."
"36. The abovestated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Ext. D-4) did not bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness."
In our view, the decision in the aforesaid paragraphs is one purely on the facts and circumstances of those cases and it is not on the question of law as to such requirement being mandatory and non-compliance of it, should make the declaration unacceptable. The decision on facts, howsoever similar, does not constitute a ratio or even an obiter.
"7. ... Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."
In view of the aforesaid law laid down, in our view, the observations in the cases of Shaikh Bakshu and Kantilal, are based on the facts and would not, therefore, constitute a precedent or a ratio decidendi or even an obiter dicta to hold that bearing such an endorsement in the dying declaration is must. In our view, it would be unjust to reject the dying declaration only on such hyper technical view, which hardly of any help in the matter of criminal trials.
"20.5. If the dying declaration is recorded by a person/Magistrate/Executive Magistrate is the duty of the prosecution to specifically bring on record that the deceased had heard the statement so recorded and he/she admitted to be correct and true and puts his/her thumb impression in approval thereof. This is not mere formality but an essential part while recording a dying declaration, because the person who cannot be examined afterwards must, at least that time, should confirm correctness of the statement. (Manohar Dadarao Landage v. State of Maharashtra, MANU/MH/1538/1999 : 2000 (2) Mh.L.J. 3)."
What we find from the aforesaid para is that it is mere reproduction of what is stated in the decision of the Division Bench of this Court in Manohar Dadarao Landage's case, referred to therein. It is not the ratio of the decision of the Full Bench. We also do not find after going through the entire decision of the Full Bench that it has confirmed the aforestated view of the decision of the Division Bench of this Court. The aforesaid observations are not to the effect that a written dying declaration must contain an endorsement that it was read over and explained to the declarant, who found it to be correct or that the absence of item the dying declaration becomes unacceptable or unreliable.
42. In the decision of the Apex Court in the case of Paparambaka Rosamma, the Apex Court took the view that in the absence of a certificate by a doctor about the state of mind of the declarant existing at the time of recording the statement, it would be very risky to rely upon the subjective satisfaction of the Magistrate, who deposed that the injured was in a fit state of mind at the time of making the declaration. In Laxman's case, this view has been characterized by the Apex Court as the most hyper technical view and it is held that the statement of the Magistrate in such a situation shall prevail over the medical evidence. Even in the case of Kishore, decided by the Apex Court, it was held that in the facts and circumstances of the said case, there was no necessity to read once over the statement to the deceased.
43. In the decision of the Apex Court in the case of State of H.P. v. Lekh Raj, reported in MANU/SC/0714/1999 : (2000) 1 SCC 247, it is observed that the legal trial is conducted to ascertain the guilt or innocence of the accused. In arriving at the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial.
44. We are conscious of the fact that the different Division Benches of this Court have consistently followed the view taken by the Division Benches in the cases of Shivaji Tukaram Patdukhe, Abdul Riyaz Abdul Bashir, Raju Rambhau Patile, including the decision of the Division Bench in the case of Vilas @ Bandu Punjabrao Misal, and such judgments are also placed before us. In view of the aforesaid pronouncement by us, we are constrained to hold that these decisions and all such other decisions contrary to the view which we have been taken, do not lay down a correct position of law. We, therefore, having due regard, overrule the same and affirm the view taken by the Division Bench of this Court in the referral judgment in the case of Ganpat Lad's case, cited supra, which takes the view that it is neither the ratio nor an obiter in the decision of the Apex Court in Shaikh Bakshu's case, or for that matter even in Kanti Lal's case, that the dying declaration must contain an endorsement that it was read over and explained to the declarant, who found it to be true and correct.
46. The reference stands answered as above.

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§ 154-1 Fire Department established.
§ 154-2 Police powers of Fire Department.
§ 154-3 Investigation of fires.
§ 154-9 Adoption of codes.
§ 154-11 Right of entry.
§ 154-15 Approval of plans.
§ 154-18 Fire warning systems required.
§ 154-20 Restrictions on heating and lighting equipment.
§ 154-21 Chimneys and heating appliances.
§ 154-22 Use of torches or flame-producing devices.
§ 154-24 Storage of flammable liquids.
§ 154-25 Fire extinguishing equipment.
§ 154-30 Violations and penalties.
Building construction — See Ch. 108.
Fireworks — See Ch. 158.
Nuisances — See Ch. 223.
The Cedarburg Fire Department, for so long as it has contracted with the Town of Cedarburg to perform the duty of fighting fires and the prevention of fires in the Town of Cedarburg, is delegated as the official Fire Department of the Town. As such, it is authorized to enforce all fire prevention ordinances of the Town of Cedarburg and state laws and regulations pertaining to fire prevention and shall keep the Town Board of the Town of Cedarburg informed on fire prevention methods and on the activities of the Department as they pertain to fire fighting and prevention of fires in the Town of Cedarburg.
Police powers. The Chief of the Cedarburg Fire Department and his assistants or officers in charge at any fire are hereby vested with full and complete police authority at fires in the Town. Any officer of the Department may cause the arrest of any person failing to give the right-of-way to the Fire Department in responding to a fire in the Town of Cedarburg.
Fire limits. The Fire Chief may prescribe certain limits in the vicinity of any fire within which no persons, excepting firemen and policemen and those admitted by order of any officer of the Department, shall be permitted to come. The Chief or officer in charge shall have the power to cause the removal of any person from any building or area when, in his opinion, his continued presence could result in injury or death and to cause the removal of any property whenever it shall become necessary for the preservation of such property from fire or to prevent the spreading of fire or to protect the adjoining property, and during the progress of any fire he shall have the power to order the removal or destruction of any property necessary to prevent the further spread of the fire. He shall have the power to cause the removal of all wires or other facilities and the turning off of all electricity or other utility services where the same impedes the work of the Department during the progress of a fire.
Firemen may enter adjacent property. It shall be lawful for any fireman, while acting under the direction of the Fire Chief or other officer in charge, to enter upon the premises adjacent to or in the vicinity of any building or other property then on fire for the purpose of extinguishing such fire and, in case any person shall hinder, resist or obstruct any fireman in the discharge of his duty as is hereinbefore provided, the person so offending shall be deemed guilty of resisting firemen in the discharge of their duty.
Duties of bystanders to assist; interference. Every person who shall be present at a fire shall be subject to the orders of the Fire Chief or officer in charge and may be required to render assistance in fighting the fire or in removing or guarding property. Such officer shall have the power to cause the arrest of any person or persons refusing to obey said orders or such persons as may interfere with the orders given or work by firemen at a fire.
The Chief of the Fire Department shall investigate the cause, origin and circumstances of every fire occurring in the Town which is of suspicious nature or which involves loss of life or injury to person or by which property has been destroyed or substantially damaged. Such investigations shall be begun immediately upon the occurrence of such a fire by the Fire Chief and, if it appears that such fire is of suspicious origin, the Chief of the Fire Department shall take charge immediately of the physical evidence, shall notify the proper authorities designated by law to pursue the investigation of such matters and shall further cooperate with the authorities in the collection of evidence and in prosecution of the case.
The Town Attorney, upon request of the Chief of the Fire Department, shall assist in the investigation of any fire which, in the opinion of the Chief of the Fire Department, is of suspicious origin.
The Chief of the Fire Department shall keep a record of all fires and of all the facts concerning the same, including statistics as to the extent of such fires and the damage caused thereby, and whether such losses were covered by insurance and, if so, in what amount. Such record shall be made daily from the reports made by the Fire Department officers and inspectors. All such records shall be public.
A report of the Fire Department shall be made annually and transmitted to the Town Board. The Chief of the Fire Department shall also recommend any amendments to the Fire Prevention Code which, in his judgment, shall be desirable.
It is the intent of this chapter to prescribe regulations consistent with recognized standard practice for the safeguarding to a responsible degree of life and property from the hazards of fire and explosion arising from the storage, handling and use of hazardous substances, materials and devices and from conditions hazardous to life and property in the use or occupancy of buildings or premises.
The provisions of this chapter shall apply equally to new and existing conditions, except that existing conditions not in strict compliance with the terms of this chapter shall be permitted to continue where the exceptions do not constitute a distinct hazard to life or adjoining property.
Nothing contained in this chapter shall be construed as applying to the transportation of any article or thing shipped in conformity with the regulations prescribed by the Interstate Commerce Commission, nor as applying to the military forces of the United States.
Chapter Comm 7, Explosive Materials.
Chapter Comm 10, Flammable and Combustible Liquids.
Chapter Comm 14, Fire Prevention.
Chapter Comm 21, Construction Standards.
Chapter Comm 32, Public Employee Safety and Health.
Chapter Comm 40, Gas Systems.
Chapters Comm 61 to 65, Commercial Building Code.
Volumes I through XVI, inclusive, National Fire Protection Association Codes.
Whenever the provisions of the aforementioned codes conflict, the stricter interpretation shall apply.
Copies of each of said codes are on file in the office of the Chief of the Fire Prevention Bureau of the Cedarburg Fire Department and shall remain so filed and be, at all reasonable times, open to inspection by any interested persons.
Listed or approved by Underwriters' Laboratories, Inc., Factory Mutual Research Corp., the National Bureau of Standards, the American Gas Association Laboratories or other nationally recognized testing authorities and accepted by the Chief of the Fire Prevention Bureau as a result of his investigation and experience.
A supervised system which automatically detects a fire condition, actuates a fire alarm signal device and indicates the location from which the signal originates.
A building occupied primarily for residence purposes and having not more than two apartments, or as a boarding or rooming house serving not more than five persons with meals or sleeping accommodations or both.
Any container approved by the Interstate Commerce Commission for shipping any liquid, gaseous or solid material of a flammable, toxic or other hazardous nature.
A building in which persons are harbored to receive medical, charitable or other care or treatment, or in which persons are held or detained by reason of public or civic duty, or for correctional purposes.
A building or portion thereof containing three or more dwelling units, occupied as the home or residence of individuals, families or households living independently of each other, including tenement house, apartment house, flat, townhouse, row house, condominium, dormitory, and boarding or rooming house serving more than five persons with meals or sleeping accommodations or both.
Includes a person, persons, firm, corporation or copartnership.
A building in which persons congregate for civic, political, education, religious, social or recreational purposes.
Except when classed as an institutional building, a building in which sleeping accommodations are provided.
The Chief of the Fire Department, or any subordinate designated by him, may, at all reasonable hours, enter any building or premises within his jurisdiction for the purpose of making any inspection or investigation which, under the provisions of this chapter, he may deem necessary to be made. Private dwellings and buildings used for agricultural purposes shall not be entered without the consent or permission of an adult occupant.
It shall be the duty of the Chief of the Fire Department to inspect or cause to be inspected by the Fire Department officers or members all buildings and premises, except the interiors of private dwellings and buildings used for agricultural purposes, as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire or any violations of the provisions or intent of this chapter and of any other ordinance affecting the fire hazard and to ensure compliance in all places of assembly with all laws, regulations and orders dealing with overcrowding, use of decorative materials, maintenance of exitways, and maintenance of fire alarm and fire detecting systems and fire extinguishing systems and appliances. The Chief of the Fire Department or an inspector thereof, upon the complaint of any person or whenever he shall deem it necessary, shall inspect any buildings and premises within his jurisdiction.
Dangerous or unlawful amounts of combustible or explosive matter.
Hazardous conditions arising from defective or improperly installed equipment for handling or using combustible or explosive matter.
Dangerous accumulations of rubbish, wastepaper, boxes, shavings or other highly flammable materials.
Accumulations of dust or waste materials in air-conditioning systems or of grease in kitchen exhaust ducts.
Obstructions to or on fire escapes, stairs, passageways, doors or windows, liable to interfere with the operations of the Fire Department or egress of occupants in case of fire.
Any buildings or other structure which, for want of repairs, lack of sufficient fire escapes or other exit facilities, automatic or other fire alarm apparatus or fire extinguishing equipment, or by reason of aged or dilapidated conditions, or from any other cause, creates a fire hazard or a threat to life and safety.
The service of such orders as mentioned in Subsection A above may be made upon the owner, occupant or other person responsible for the conditions, either by delivering a copy of same personally or by delivering the same to and leaving it with any person in charge of the premises, or in case no such person is found upon the premises, by affixing a copy thereof in a conspicuous place on the door to the entrance of said premises. Whenever it may be necessary to serve such an order upon the owner of premises, such order may be served either by delivering to and leaving with a person a copy of the order or, if such owner is absent from the jurisdiction of the officer making the order, by mailing such copy to the owner's last known post office address.
If buildings or other premises are owned by one person and occupied by another under lease or otherwise, the orders issued in connection with the enforcing of this chapter shall apply to the occupant thereof, except where the rules or orders require the making of additions to or changes in the premises themselves, such as would immediately become real estate and be the property of the owner of the premises; in such cases the rules or orders shall affect the owner and not the occupant unless it is otherwise agreed between the owner and the occupant.
Permissions granted; limitations. A permit shall constitute permission to maintain, store or handle materials, or to conduct processes, which produce conditions hazardous to life or property, or to install equipment used in connection with such activity. Such permit does not take the place of any license required by law. It shall be for an indefinite period, not transferable, and any change in use or occupancy of premises shall require a new permit.
Approval before issuance. Before a permit may be issued, the Chief of the Fire Prevention Bureau, or his assistants, shall inspect and approve the receptacles, vehicles, building or storage place to be used. In cases where laws or regulations enforceable by departments other than the Fire Department are applicable, joint approval shall be obtained from all departments concerned.
Applications. All applications for a permit required by this chapter shall be made to the Chief of the Fire Prevention Bureau in such form and detail as he shall prescribe.
To be kept on premises. Permits shall be at all times kept on the premises designated therein and shall at all times be subject to inspection by any officer of the Fire or Sheriff's Department.
Submission. Two copies of plans and specifications for any commercial, industrial, institutional, school or public building construction shall be submitted to the Cedarburg Fire Department for review. Approved plans must be stamped "Approved by the Fire Prevention Bureau of the Cedarburg Fire Department" and the date of such approval. One copy shall be returned to the owner and the other kept on file by the Fire Prevention Bureau.
Building permit. No building permit for any building covered by this section shall be issued unless the Building Inspector's copy of the plans for the proposed building has been stamped "Approved" by the Fire Prevention Bureau of the Cedarburg Fire Department.
Construction inspections. While a covered building is under construction, the Building Inspector, Plumbing Inspector, Electrical Inspector and Fire Prevention Bureau Inspector will share jointly in the responsibility of conducting inspections to see that all provisions of this chapter have been carried out.
Occupancy permit. A final inspection of the building will be made by the Fire Prevention Bureau Inspector after notification by the Building Inspector. The occupancy permit required under the Town Zoning Code must be stamped "Approved" by the Fire Prevention Bureau before issuance.
The Chief of the Fire Prevention Bureau shall have power to modify any of the provisions of the Fire Prevention Code upon application in writing by the owner or lessee, or his duly authorized agent, when there are practical difficulties in the way of carrying out the strict letter of this chapter, provided that the spirit of this chapter shall be observed, public safety secured and substantial justice done. The particulars of such modification, when granted or allowed, and the decision of the Chief of the Fire Prevention Bureau thereon shall be entered upon the records of the Bureau and a signed copy shall be furnished the applicant.
Whenever the Chief of the Fire Prevention Bureau shall disapprove an application or refuse to grant a permit applied for or when it is claimed that the provisions of this chapter do not apply or that the true intent and meaning of this chapter have been misconstrued or wrongly interpreted, the applicant may appeal from the decision of the Chief of the Fire Prevention Bureau to the Town Board within 10 days from the date of the decision of the Chief. In the event of such appeal, the Town Board shall set a time and place for hearing thereof and give to the appellant at least 10 days' notice thereof by mail or personally.
General provisions. Every one or two-family dwelling unit hereafter erected, constructed or reconstructed shall be provided with approved smoke detectors.
Equipment performance. Each smoke detector shall be capable of detecting abnormal quantities of smoke that may occur in a dwelling and shall properly operate in the normal environmental conditions of a household. Smoke detectors shall be capable of detecting gray smoke having a minimum smoke obscuration of 4% per foot (optical density of 0.0177 per foot). The failure of any nonreliable or short-life component which renders the detector inoperative shall be readily apparent to the occupant of the dwelling without the need for testing.
Alarm sounding devices. Each detection device shall cause the operation of an alarm which shall be clearly audible in all bedrooms over background noise levels with all intervening doors closed. The tests of audibility level shall be conducted with all household equipment, which may be in operation at night, in full operation. Examples of such equipment are window air conditioners and room humidifiers. All alarm-sounding devices shall have a minimum rating of 85 dBA at 10 feet.
Level of protection. A basic smoke detector shall be installed to protect each separate sleeping area and at the head of each stairway leading to an occupied area.
Detector locations. Smoke detectors in rooms with ceiling slopes greater than one foot rise per eight feet horizontally shall be located at the high side of the room. A smoke detector installed at the head of stairs shall be so located as to assure that smoke rising in the stairwell cannot be prevented from reaching the detector by an intervening door or obstruction. A smoke detector installed to protect a sleeping area shall be located outside of the bedrooms but in the immediate vicinity of the sleeping area. Detectors shall be located on the ceiling.
Power supply. It is recommended that an AC primary source of electric power be utilized. The requirements of Article 760 of the National Electrical Code, NFPA Standard No. 70, shall be met, except where they conflict with the Electrical Code of the Town of Cedarburg. In those cases, the Town Electrical Code shall be followed. A separate circuit shall be utilized and the circuit breaker shall be colored red. Wire used shall be of the solid conductor, nonstranded type. Neither loss nor restoration of primary power shall cause an alarm signal. A visible "power on" indicator shall be provided.
Installation. All equipment shall be installed in a workmanlike manner and in accordance with the manufacturer's instructions. All devices shall be so located and mounted that accidental operation will not be caused by jarring or vibration. Installed equipment shall be mounted so as to be supported independently of its attachment to wires. Upon completion of the system, the installer shall test each device for proper operation. The supplier or installing contractor shall provide the owner, through the Town Building Inspector, with instruction charts describing the operation, testing and proper maintenance of the smoke detectors. In addition, printed information shall be provided to inform the owner where he may obtain repair or replacement service and where and how parts requiring regular replacement may be obtained within two weeks.
General provisions. Approved heat and/or smoke detectors shall be installed in each room throughout every commercial, industrial, institutional, school or public building not covered under Subsection A hereinafter constructed or structurally altered. Where the Bureau of Fire Prevention finds that, by reason of construction or highly combustible occupancy, existing buildings constitute a severe fire hazard to their occupants or to adjoining property, the provisions of this section will also apply.
Approval. All fire detection devices shall be approved for the purpose for which they are intended and shall be installed in conformity with NFPA Standard No. 72E. Three complete sets of information regarding the fire detectors, including specifications and floor plans showing the location of the detectors, shall be submitted for approval of the Fire Prevention Bureau prior to installation of the detectors. Before requesting final approval of the installation, the installing contractor shall furnish a written statement to the Chief of the Fire Prevention Bureau to the effect that the detectors have been installed in accordance with approved plans and tested in accordance with the manufacturer's specifications. Upon completion of the installation, a satisfactory test of the fire detectors shall be made in the presence of a representative of the Fire Prevention Bureau.
Installation. All equipment shall be installed in a workmanlike manner and in accordance with the manufacturer's instructions. Detectors shall be supported, in all cases, independently of their attachment to the circuit conductors. Detectors shall not be recessed in any way into the mounting surface unless they have been tested and listed for such recessed mounting. In the case of solid joist construction, detectors shall be mounted at the bottom of the joists.
Power supply. An AC primary source of electrical power shall be utilized. A separate circuit shall be provided for the system and the circuit breaker shall be colored red. The requirements for power-limited fire protective signaling circuits as defined in Article 760 of the National Electrical Code, NFPA Standard No. 70, shall be met, except where they conflict with the Electrical Code of the Town of Cedarburg. In those cases, the Town Electrical Code shall be followed. Wire used shall be of the solid conductor, nonstranded type. The system shall be electrically supervised against both short and open wiring faults in the detection circuit, the alarm circuit and the alarm and trouble relay coils. A short or open wiring fault occurring in these circuits shall cause an audible and visible trouble indication at the control panel.
The main and remote alarm devices, including the public alarm system, will sound.
The proper zone and fire indication will appear on an annunciator panel.
Heat detectors. The location and spacing of heat detectors shall be in accordance with the recommendations contained in NFPA Standard No. 72E. Detectors of the fixed-temperature or rate-compensated spot-pattern type shall be classified as to the temperature of operation and marked with the appropriate color code. Detectors having fixed temperature or rate compensated elements shall be selected in accordance with Paragraph 3-3.1 of Standard No. 72E for the maximum ceiling temperature that can be expected.
Smoke detectors. Smoke detectors shall be located on the ceiling not less than six inches from a side wall. Spacing of detectors shall result from an evaluation based upon engineering judgment supplemented, if feasible, by field tests. Ceiling shape and surfaces, ceiling height, configuration of contents, burning characteristics of stored combustibles and ventilation are some of the parameters that shall be considered. Spacing shall also be in accordance with Paragraph 4-4 of Standard No. 72E. The selection and installation of detectors shall take into consideration both the design characteristics of the detector and the areas into which the detectors will be installed so as to prevent false operation or nonoperation after installation. Detectors shall be capable of detecting gray smoke having a minimum smoke obscuration of 4% per foot (optical density of 0.0177 per foot).
Alarm sounding devices. Each detection device shall cause the operation of an alarm which shall be clearly audible over background noise levels. The tests of audibility level shall be conducted with all equipment which may be in operation. All alarm sounding devices shall have a minimum rating of 85 dBA at 10 feet.
Maintenance and testing. Each automatic detector shall be continuously maintained in reliable operating condition at all times, and such periodic inspections and tests shall be made as are necessary to assure proper maintenance as specified in Chapter 7 of Standard No. 72E. Detectors shall be under the supervision of a responsible person who shall cause proper tests to be made at specified intervals and have general charge of all alterations and additions. After installation, a visual inspection of all detectors shall be made to be sure that they are properly located, and each detector shall be checked to ensure that it is connected and powered in accordance with the manufacturer's recommendations. Specifics for initial installation tests, periodic tests, cleaning and maintenance, and tests following an alarm, as contained in Chapter 7 of Standard No. 72E, shall be followed.
Lights and devices. No person shall take an open flame or light into any building, barn, vessel, boat or any other place where highly flammable, combustible or, explosive material is kept, unless such light or flame shall be well secured in a glass globe, wire mesh cage or similar approved device.
Place of assembly. No open flame, candles or other open flame fixture, whether equipped with a guard or not, shall be used in any place of assembly, except within duly constituted church or lodge buildings. Such open flame candles or other flame fixtures, whether equipped with a guard or not, shall not be used in auditoriums of church or lodge buildings, except when such candles or fixtures are actually held by persons seated, standing or in procession in such auditorium. Such candles or fixtures need not be held by persons in the auditorium if they are securely appointed on noncombustible bases, the flame is at least seven feet above the floor, and they are so located as to avoid danger of ignition of combustible material, are under constant observation and supervision by a responsible person designated for each aisle, are kept lighted only when necessary during the ceremony or ritual, and are extinguished before the occupants leave the auditorium.
Stages. Open flame devices may be used on stages or church altars where a necessary part of the theatrical or religious performance requires, provided adequate precautions, satisfactory to the Chief of the Fire Department, are taken to prevent ignition of any combustible materials.
Restaurants. Open flame devices used for the warming of food may be used in restaurants and dining areas, provided such devices and their location are approved by the Chief of the Fire Department.
Exceptions. The use of other open flame light and devices not herein regulated may be permitted by the Chief of the Fire Department under such restrictions as, in his judgment, are necessary to avoid danger of ignition of combustible material or injury to persons.
No heating or lighting apparatus or equipment capable of igniting flammable materials of the type stored or handled shall be used in the storage area of any warehouse storing rags, excelsior, hair or other highly flammable or combustible material, nor in the work area of any shop or factory used for the manufacture, repair or renovating of mattresses or bedding, nor in the work areas of any establishment used for the upholstering of furniture.
All chimneys, smokestacks or similar devices for conveying smoke or hot gases to the outer air and the stoves, furnaces, fire boxes or boilers to which they are connected shall be constructed and maintained in such a manner as not to create a fire hazard.
Any person using a torch or other flame producing device for removing paint from any building or structure shall provide one approved fire extinguisher or water hose connected to the water supply on the premises where such burning is done. In all cases, the person doing the burning shall remain on the premises one hour after the torch or flame producing device has been used.
Hot ashes and other dangerous materials. No person shall deposit hot ashes or cinders, or smoldering coals, or greasy or oily substances liable to spontaneous ignition, into any wooden receptacle or place the same within 10 feet of any combustible material, except in metal or other noncombustible receptacles. Such receptacles, unless resting on a noncombustible floor or on the ground outside the building, shall be placed on noncombustible stands, and in every case must be kept at least two feet away from any combustible wall or partition.
Handling readily combustible materials. No person making, using, storing or having in charge, or under his control, any shavings, excelsior, rubbish, sacks, bags, litter, hay, straw or combustible waste materials shall fail or neglect at the close of each day to cause all such materials which are not compactly baled and stacked in an orderly manner to be removed from the building or stored in suitable vaults or in metal or metal-lined, covered receptacles or bins.
Storage of readily combustible materials. Storage in buildings shall be orderly, shall not be within two feet of the ceiling, and shall not be so located as to endanger exit from the building. Storage in the open shall not be more than 20 feet in height, shall be so located, with respect to adjacent buildings, as not to constitute a hazard, and shall be compact and orderly.
Flammable decorative materials in stores. Cotton battings, straw, dry vines, leaves, trees or other highly flammable materials shall not be used for decorative purposes in show windows or other parts of stores unless flameproofed; provided, however, that nothing in this section shall be held to prohibit the display of saleable goods permitted and offered for sale. Electric light bulbs in stores shall not be decorated with paper or other combustible materials unless such materials shall first have been rendered flameproof.
Indoor and outdoor storage of flammable liquids shall be governed by Ch. Comm 10, Wis. Adm. Code.
Aboveground or underground tanks for storage of flammable liquids for farm use shall be permitted in accordance with § Comm 10.16, Wis. Adm. Code.
Existing aboveground or underground tanks for storage of flammable liquids for private, nonfarm use may be used but not replaced.
The Chief of the Fire Prevention Bureau is hereby empowered to designate the number, type and location of fire extinguishers as may be deemed necessary in addition to those now required by law in all existing buildings and structures and in all buildings and structures hereafter erected.
When required. When required by the Fire Prevention Bureau, hard-surfaced driving lanes shall be provided around facilities which, by their size, location, design or contents, warrant access which exceeds that normally provided by the proximity of Town roads.
General provisions. Lanes shall provide a minimum, unobstructed continuous width and height of 12 feet. Lanes shall be identified by a four-inch-wide line and block letters two feet high, painted in the lane, at fifty-foot intervals stating "Fire Lane — No Parking," color to be bright yellow, or by the posting of signs stating "Fire Lane — No Parking." Signs shall be posted on or immediately next to the curbline or on the building. Signs shall be 12 inches by 18 inches and shall have letters and background of contrasting colors, readily readable from at least a fifty-foot distance. Signs shall be spaced not further than 50 feet apart. Signs shall be mounted a minimum of four feet and a maximum of 6 1/2 feet from the pavement to the bottom edge of the sign. Fire lanes shall be either asphalt or reinforced concrete four inches thick minimum, or, when specifically authorized by the Fire Prevention Bureau, compacted crushed rock may be used. Where fire lanes connect to Town roads or parking lots, adequate clearance and turning radii shall be provided. All proposed plans for such lanes must have Fire Prevention Bureau approval.
Fire lanes as part of driveways and/or parking areas. The Fire Prevention Bureau may require that areas specified for use as driveways or private thoroughfares shall not be used for parking. These areas, when specified, shall be marked or identified by one of the two means detailed in Subsection B above.
Existing buildings. When, by his judgment, the Chief of the Fire Prevention Bureau determines that a hazard due to inaccessibility of fire apparatus exists around existing buildings, he may require fire lanes to be constructed and maintained as detailed in Subsections A and B above.
Prohibitions. Parking of motor vehicles or otherwise obstructing fire lanes shall be prohibited at all times.
Tent permit required. No tent exceeding 1,500 square feet in area shall be erected, maintained or used without a permit. The Building Inspector shall issue the permit.
Fire watchers to be employed. One or more qualified persons to serve as fire watchers shall be employed by all circuses, carnivals or other exhibitions where large crowds assemble. They shall familiarize themselves with all fire protection facilities and fire prevention features and with the conditions of exits and shall patrol the entire tent area during the time of occupancy. They shall see that aisles and exitways are kept open and that "No Smoking" rules are enforced.
Tents for assembly to conform to recognized safe practices. The design, construction, flameproofing, location, maintenance and use of tents for assembly shall be in accordance with recognized safe practices. Compliance with the American Standard of Outdoor Assembly, Grandstands and Tents, as adopted by the National Fire Protection Association, shall be considered as prima facie evidence of compliance with such recognized safe practices.
Smoking defined. "Smoking" means and includes the carrying of lighted pipe, cigar, cigarette or tobacco in any form.
Chief to designate areas where smoking shall be prohibited. Where conditions are such as to make smoking a hazard in any areas of warehouses, stores, industrial plants, institutions, places of assembly and in open spaces where combustible materials are stored or handled, the Chief of the Fire Prevention Bureau is empowered and authorized to order the owner or occupant in writing to post "No Smoking" signs in each building, structure, room or place in which smoking shall be prohibited. The Chief of the Fire Prevention Bureau shall designate specific safe locations, if necessary, in any building, structure or place in which smoking may be permitted.
"No Smoking" signs. "No Smoking" signs required in accordance with Subsection B shall read "By Order of the Bureau of Fire Prevention."
Smoking and removal of "No Smoking" signs prohibited. No person shall remove any legally required "No Smoking" sign or smoke in any place where such signs are posted.
This Fire Prevention Code shall be enforced by the Chief of the Cedarburg Fire Department and such subordinates in the Department as the Chief shall designate. The Town Building, Plumbing and Electrical Inspectors and Health Officer shall cooperate with the Fire Department in enforcing this chapter.
Any person who shall violate any of the provisions of this chapter or fail to comply therewith or who shall violate or fail to comply with any order made thereunder or who shall build in violation of any detailed statement of specifications or plans submitted and approved thereunder, or any certificate or permit issued thereunder, or who shall fail to comply with such an order as affirmed or modified by the Chief of the Fire Department or the Town Board or by a court of competent jurisdiction within the time fixed herein shall, upon conviction thereof, be subject to a penalty as prescribed in Chapter 1, § 1-3 of this Code.
The application of the above penalty shall not be held to prevent the enforced removal of prohibited conditions.


In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) (“safety valve”) provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon “in connection with the offense.” Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.
In this case of first impression in the 11th Circuit the court focused on the interpretation of the language “in connection with the offense.” No definition or explanation was provided in the guidelines or the statutes. The court rejected the government’s argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if “a weapon was possessed” and not “if a weapon was possessed in connection with the offense.” A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a “difficult task” to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a “connection” with the drug offense depended on whether the firearm “facilitated or had the potential to facilitate” the drug offense. Under the facts of Carrillo’s case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction “greased the wheels” for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.


The claimant was represented by Benjamin M. Massa, Esq., 221 Main Street, Hartford, CT 06106. However, as the issues did not involve the claimant, he did not appear.
The respondents Town of Andover and Webster Insurance Company were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The respondents Town of Andover and Hartford Insurance Group were represented by John W. Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
This Petition for Review from the January 17, 2008 Finding and Award of the Commissioner acting for the Second District was heard August 29, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Webster Risk Services [hereafter Webster] filed this appeal from the January 17, 2008 Finding and Award of the Commissioner acting for Second District. In that Finding and Award the trial commissioner ordered the appellant to reimburse the respondent, Hartford Insurance Group, [hereafter Hartford] 51.1 weeks of § 31-308a benefits paid by the Hartford to the claimant. At the outset, we note that this is not the first time this tribunal has considered an appeal pertaining to the administration of the instant claim. Our earlier consideration of this matter resulted in our opinion in Houghton v. Andover, 4949 CRB-2-05-6 (May 18, 2006) [hereafter Houghton I]. The pertinent facts giving rise to the claim and this appeal are as follows.
The claimant sustained a compensable injury to his back on March 2, 1995. The carrier on the risk at the time of this injury was the Hartford. The claimant underwent surgery and returned to work without any physical restrictions. On October 31, 1995 a Voluntary Agreement was approved providing the claimant with 56.1 weeks of permanent partial disability for a 15% permanent partial disability. The claimant continued to work for the Town of Andover and on May 8, 2002 sustained a second injury to his back. At the time of the May 8, 2002 injury, the employer was insured by Webster. As a result of the second injury the claimant again underwent surgery and was found to have suffered an additional 6% permanent partial disability. A Voluntary Agreement was approved December 21, 2004 and the claimant was paid an additional 22.44 weeks of permanent partial disability. The claimant was unable to return to his employment with the Town of Andover following the May 8, 2002 injury.
Thereafter, the claimant sought § 31-308a benefits contending any such benefits should be capped at 78.54, the cumulative sum of the claimant’s permanent partial disability benefits from the 1995 and 2002 injuries. The trial commissioner agreed with the claimant and in the May 26, 2005 Finding and Award the respondent Hartford was ordered to pay 56.1 weeks of benefits and the respondent Webster to pay 22. 44 weeks of same. The respondent Hartford took an appeal with the Compensation Review Board from the May 26, 2005 Finding and Award.
In Houghton I, the Hartford argued that the trial commissioner erred in finding that any liability for § 31-308a benefits existed with the Hartford as (1) the claimant was able to return to work with no physical restrictions after reaching maximum medical improvement following the March 2, 1995 injury and (2) apportionment of liability for § 31-308a benefits was inconsistent with the Supreme Court’s opinion in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). In Houghton I, we noted that the trial commissioner specifically found that the May 8, 2002 injury was a “new injury.” As the May 8, 2002 injury was a separate and distinct injury from that suffered on March 2, 1995, no right of apportionment existed. Thus, we held the respondent Webster was solely liable for payment of § 31-308a benefits.
The respondent Webster appealed Houghton I to the Appellate Court and subsequently withdrew its appeal. The respondent Hartford then sought reimbursement from Webster for the §31-308a benefits it paid to the claimant. To that end, the trial commissioner heard the instant matter and following the filing of briefs, ordered in the January 17, 2008 Finding and Award that Webster reimburse the Hartford. Following the trial commissioner’s January 17, 2008 Finding and Award the respondent Webster filed a Motion for Articulation and a Motion to Correct both of which were denied by the trial commissioner. The appellant’s reasons for appeal present the following issues; (1) whether the trial commissioner erred in failing to grant its Motion for Articulation, (2) whether the trial commissioner erred in failing to grant its Motion to Correct and, (3) whether the trial commissioner erred in ordering the appellant to reimburse the respondent Hartford for payment of 56.1 weeks of § 31-308a benefits.
Id., quoting In re Shamika F., 256 Conn. 383, 407-08 (2001).
We therefore affirm the January 17, 2008 Finding and Award of the Commissioner acting for Second District.


Predatory lending has become an insidious financial problem in recent years for thousands of Californians. In any real estate loan, the loan terms and consequences must be adequately disclosed and, more importantly, financially feasible for the borrower. Through "flipping" and "packing," predatory lenders avoid these two requirements, reaping massive benefits while causing financial ruination for the consumer.
Fortunately for consumers, the California Legislature has recognized the growing problem of predatory lending by adding Division 1.6 to the Financial Code(2), effective July 1, 2002. This law specifies what constitutes predatory lending and expressly prohibits certain acts. In discussing predatory lending practices in California, this article will demonstrate the potential impact of the new law, and what remedies are now available to those affected by these practices. .
Unlike most prime loans, subprime mortgage loans are generally based on the equity in a borrower's house instead of his or her ability to make the scheduled payments. Therefore, problems meeting scheduled payments frequently arise due to the borrower's lack of liquidity, a problem obviously foreseeable, yet ignored, by the lender. When this occurs, the predatory lender encourages the borrower to refinance the loan into another unaffordable loan, thus increasing the loan amount owed, primarily due to new finance fees. This "refinancing" severely decreases the borrower's equity in his or her home and is a common practice referred to as "loan flipping."
One of the most potent tools used by predatory lenders to keep borrowers defenseless is the prepayment penalty. According to Standard & Poor's, subprime loans contain prepayment penalties 80% of the time, while prime loans only 2% of the time.(3) Since it is lower income individuals who are targeted by predatory lenders, the threat of thousands of dollars in prepayment penalties obviates the lenders fear of the borrower prepaying the balance through a more affordable prime loan. The prepayment penalties trap the individual in a long-term unaffordable loan that can only be refinanced by the lender who misrepresented the loan terms in the first place.
Subprime lenders state that they serve a very important function, mainly providing credit to borrowers with imperfect credit histories. However, it is this exact premise, the supposed benevolence of subprime lending, on which predatory lenders rely to justify their practices, thereby blending financially feasible subprime lending into predatory lending. Financial Code § 4970 is California's remedy to this problem.
Second, when applying for a loan, keep an eye out for common misrepresentations that are indicative of predatory loans. For example, the lender states that the loan has the flexibility of an open line of credit, or the lender requires credit insurance, claiming it is the only way the borrower will qualify for the loan. Next, the consumer should ask to see the lender's published rates on fees and points.
Finally, the consumer should look for terms and conditions that will trap him or her into the loan. As discussed above, prepayment clauses are indicative of a predatory loan. The reasoning behind prepayment clauses is to keep borrowers from refinancing into a prime loan once they learn the financial reality of their current loan. Furthermore, when a borrower is offered a loan that is "asset based"(10), he or she should demand to be told what affect such a loan could have on the asset's equity.
1. Niall P. McCarthy is a named partner with Cotchett, Pitre & McCarthy in Burlingame, California. He gratefully acknowledges the work of Brian Baker, Seattle University School of Law, Class of 2003, for this article.
2. Cal. Fin. Code § 4970 et seq.
3. Silver, Josh, American Banker, Protect Homeownership As We Move Against Predators, June 28, 2002.
4. See California Reinvestment Committee, www.calreinvest.org/campaigns.
5. To be a "covered loan", the loan must be secured by the equity in one's house. Also, the original principal balance of the loan cannot exceed $250,000 in the case of a mortgage or a deed of trust. Finally, the annual percentage rate for the loan at its inception must exceed by more than eight percentage points the yield on Treasury securities bearing a comparable period of maturity or the total points and fees paid at closing exceed 6 percent of the total loan amount. For a more thorough definition, see California Financial Code § 4970(b).
7. Cal. Fin. Code § 4979.5.
8. Cal. Fin. Code § 4978.
9. California Business & Professions Code § 17200 et seq. prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Business & Professions Code § 17200 et seq not only offers restitution and disgorgement, but also injunctive relief.
10. "Asset based" loans are those that clearly cannot be repaid with the borrowers liquid cash. See Independent Banker, Gunning For Black Hats, October 2000.


(k) the cooperative effort established by this chapter is necessary to prevent or mitigate adverse environmental effects of present and future surface coal mining operations.
This chapter, referred to in pars. (e), (f), and (k), was in the original "this Act", meaning Pub. L. 95–87, Aug. 3, 1977, 91 Stat. 445 , as amended, which enacted this chapter and amended section 1114 of Title 18, Crimes and Criminal Procedure. For complete classification of this Act to the Code, see Short Title note set out below and Tables.
Pub. L. 114–223, div. C, §202(a), as added by Pub. L. 115–30, par. (2), Apr. 28, 2017, 131 Stat. 134 , provided that: "This section [amending section 1232 of this title] may be cited as the 'Further Continued Health Benefits for Miners Act'."
Pub. L. 114–223, div. C, §167(a), as added by Pub. L. 114–254, div. A, §101(3), Dec. 10, 2016, 130 Stat. 1009 , provided that: "This section [amending section 1232 of this title] may be cited as the 'Continued Health Benefits for Miners Act'."
Pub. L. 109–432, div. C, title II, §200, Dec. 20, 2006, 120 Stat. 3006 , provided that: "This title [enacting section 1244 of this title, amending sections 1231 to 1233, 1236, 1238, 1240a, 1260, 1300, and 1302 of this title and sections 9701, 9702, 9704 to 9707, 9711, 9712, and 9721 of Title 26, Internal Revenue Code, and enacting provisions set out as notes under section 1232 of this title and sections 9701, 9704, and 9712 of Title 26] may be cited as the 'Surface Mining Control and Reclamation Act Amendments of 2006'."
Pub. L. 101–508, title VI, §6001, Nov. 5, 1990, 104 Stat. 1388–289 , provided that: "This subtitle [subtitle A (§§6001–6014) of title VI of Pub. L. 101–508, enacting section 1240a of this title, amending sections 1231 to 1237, 1239, 1257, and 1302 of this title, and enacting provisions set out as notes under section 1231 of this title] may be cited as the 'Abandoned Mine Reclamation Act of 1990'."
Pub. L. 101–498, §1, Nov. 2, 1990, 104 Stat. 1207 , provided that: "This Act [enacting section 1230a of this title] may be cited as the 'Strategic and Critical Minerals Act of 1990'."
Pub. L. 100–483, §13, Oct. 12, 1988, 102 Stat. 2341 , provided that: "This Act [amending sections 1221, 1222, 1224, 1226, 1229, and 1230 of this title and enacting provisions set out as notes under this section and section 1229 of this title] may be cited as the Mining and Mineral Resources Research Institute Amendments of 1988."
Pub. L. 95–87, §1, Aug. 3, 1977, 91 Stat. 445 , provided: "That this Act [enacting this chapter and amending section 1114 of Title 18, Crimes and Criminal Procedure] may be cited as the 'Surface Mining Control and Reclamation Act of 1977'."
Pub. L. 98–409, §11, as added by Pub. L. 100–483, §12, Oct. 12, 1988, 102 Stat. 2341 ; amended by Pub. L. 104–312, §1(b), Oct. 19, 1996, 110 Stat. 3819 , provided that: "This Act [enacting subchapter III of this chapter] may be cited as the 'Mining and Mineral Resources Institutes Act'."


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ecobee, Inc. v. Filter Pro et al. (18-cv-12235), Hatzlacha LLC d/b/a The Corner Store et al. (18-cv-12236), and Ultra Design (18-cv-12237).
Ecobee filed three trademark suits, accusing Filter Pro, The Corner Store, and Ultra Design of trademark infringement, unfair competition, false designation of origin, and tortious interference. Ecobee makes smart home control products, including light switches and thermostats, that it sells through authorized resellers who are contractually obliged to provide specific quality controls on the products sold and prevented from selling to subsequent, unauthorized resellers. Each of the defendants is an Amazon Seller Account that, despite not being ecobee authorized resellers, are alleged to have sold ecobee products. Ecobee asserts that the defendants could only have obtained ecobee inventory through knowingly soliciting authorized resellers, intentional and knowing interference with the resellers contracts and business relationships with ecobee, or through fraudulent or illicit means. They further assert that the defendants violate the ECOBEE trademark by selling actual ecobee goods without authorization. The cases are presently before Judges Stearn, Woodlock, and Saris.
Author dmassiplitigationPosted on November 13, 2018 Categories Complaint, Saris, Stearns, Trademark, Unfair business practice, Woodlock2 Comments on ecobee, Inc. v. Filter Pro et al. (18-cv-12235), Hatzlacha LLC d/b/a The Corner Store et al. (18-cv-12236), and Ultra Design (18-cv-12237).
American Chair & Seating Corp. v. Restaurant Seating Corp. et al. (18-cv-10750).
In a sibling rivalry gone wrong, American Chair accuses Restaurant Seating and Stephen DiStasio of copyright and trademark infringement, palming off, and violation of M.G.L. 93A in connection with Restaurant Seating’s alleged use of American Chair’s copyrighted photographs, trademarks, and trade dress to steer business from the former to the latter. Prior to forming Restaurant Seating, Stephen DiStasio worked for American Chair under the supervision of his brother and American Chair’s President, Michael DiStasio. Restaurant Seating is accused of using American Chair’s copyrighted photographs on its website, using confusingly similar slogans to those registered by American Chair (e.g., “We build furniture to last the life of your concept” versus American’s registered “Furniture built to last the life of your concept”), and passing off American Chair products as if they were Restaurant Seating’s offerings, including in at least one instance hiring a manufacturer to knock off an American design that had been used to sell to a Salem, MA restaurant. American Chair seeks temporary, preliminary, and permanent injunctive relief in addition to damages and attorneys fees. The case is before Judge Woodlock.
Author dmassiplitigationPosted on April 19, 2018 Categories Complaint, Copyright, Trademark, Uncategorized, WoodlockLeave a comment on American Chair & Seating Corp. v. Restaurant Seating Corp. et al. (18-cv-10750).
MAP Royalty, Inc. v. MAP Energy Solutions, LLC (18-cv-10630).
MAP Royalty accuses MAP Energy Solutions (“MES”) of infringing its registered MAP and stylized MAP marks, as well as common law rights in the mark, in connection with investment and management of energy projects, including renewable energy projects such as solar and wind power. MAP Royalty asserts that it manages over $2 billion in capital energy commitments, and has been using the marks since 1998. It says that MES formed in 2015, and began using the MAP trademark shortly thereafter, both as a mark and as a part of its domain names, in connection with directly competing and closely related services. The case is before Judge Woodlock.
Author dmassiplitigationPosted on April 4, 2018 Categories Complaint, Trademark, WoodlockLeave a comment on MAP Royalty, Inc. v. MAP Energy Solutions, LLC (18-cv-10630).

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