It is relevant in this context to quote the
maxim "nullus commodum capere potest de injuria sua propria meaning no man
can take advantage of his own wrong." Union
Of India & Ors vs Major General Madan Lal Yadav : 1996 (1)
KLT Online 901 (SC) was a case in which an action was taken against the
respondent under Section 122 of the Army Act, 1950
on account of dereliction of duty and action. Relevant paragraph reads as
follows:
".................
On consideration of the charge, the proceedings were adjourned from day to day
till the respondent appeared on March 2, 1987. It is obvious that the
respondent had avoided trial to see that the trial would not get commenced.
Under the scheme of the Act and the Rules, presence of the accused is a
pre-condition for commencement of trial. In his absence and until his presence
was secured, it became difficult, may impossible, to proceed with the trial of
the respondent- accused. In this behalf, the maxim nullus commodum capere
potest de injuria sua propria- meaning no man can take advantage of his own
wrong - squarely stands in the way of avoidance by the respondent and he is
estopped to plead bar of limitation contained in Section
123. In Broom's Legal Maximum [10th Edn.] at page 191 it is stated
"it is a maxim of law, recognized and established, that no man shall take
advantage of his own wrong; and this maxim, which is based on elementary
principles, is fully recognized in Courts of law and of equity, and, indeed,
admits of illustration from every branch of legal procedure. The reasonableness
of the rule being manifest, we proceed at once to show its application by
reference to decided cases. It was noted therein that a man shall not
take advantage of his own wrong to gain the favourable interpretation of the
law. In support thereof, the author has placed reliance on another maxim
frustra legis auxilium quoerit qui in legem committit. He relies on Perry v.
Fitzhowe [8 Q.B. 757]. At page 192, it is stated that if a man be bound to
appear on a certain day, and before that day the obligee put him in prison, the
bond is void. At page 193, it is stated that "it is moreover a sound
principle that he who prevents a thing from being done shall not avail himself
of the non-performance he has occasioned". At page 195, it is further
stated that "a wrong doer ought not to be permitted to make a profit out
of his own wrong". At page 199 it is observed that "the rule applies
to the extent of undoing the advantage gained where that can be done and not to
the extent of taking away a right previously possessed".
In
Devendra Kumar vs State Of Uttaranchal & Ors : 2013 (3) KLT
(Suppl) 62 (SC) : (2013) 9 SCC 363 : AIR 2013 SC 3325 the applicability of the
maxim has again come up. In paragraph 23 of the said judgment it has been held
that a person having done wrong cannot take advantage of his own wrong and
plead bar of any law to frustrate the lawful trial by a competent court. In
such a case, the legal maxim 'Nullus Commodum Capere Potest De Injuria
Sua Propria' applies. The persons violating the law cannot be permitted to urge
that their offence cannot be subjected to inquiry, trial or investigation.
Paragraph 23 of the said judgment is relevant in this context which is
extracted below:
"
.................... A person having done wrong cannot take advantage of his
own wrong and plead bar of any law to frustrate the lawful trial by a competent
Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria
Sua Propria applies. The persons violating the law cannot be permitted to urge
that their offence cannot be subjected to inquiry, trial or investigation.
(Vide: Union of India v. Maj. Gen. Madan Lal Yadav,
AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR
2000 SC 1650 nor can a person claim any right arising out of his own writing.