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Supreme Court

Criminal Laws

Right to Private defence 

Katta Surendera vs. State of A.P. (Decided on 13.06.2008)

Plea of right to private defence - Scope thereof - Burden of proof

A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. The plea of right of private defence comprises the body or property (i) of the person exercising the right, or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 of the Indian Penal Code lays down the limits of the right of private defence and sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues.

 

HIGH COURT

CONTRACTS

Tamil Nadu Transparency in Tenders Act, 1998

HIGH COURT OF MADRAS

Ion Exchange Waterleau Ltd. Vs. The Commissioner, Madurai Municipal Corporations ( Decided on 28.04.2008) MANU/TN/0626/2008

Whether the terms of invitation to tender are open to judicial scrutiny, the same being in the realm of contract.

As held by the apex court in Tata Cellular v. Union of India, the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism but there are inherent limitations in exercise of that power of judicial review. Award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. The same has evidently been held in Directorate of Education and Ors. v. Educomp Datamatics Ltd. and Ors that the courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.

 

TRUSTS AND SOCIETIES

Tamil Nadu Societies Registration Act

HIGH COURT OF MADRAS

A. Mathivanan and G. Chandrasekaran Vs. The District Registrar (Societies) Administration and Ors. (Decided On: 15.05.2008) MANU/TN/0637/2008

Whether courts can interfere at the intermediate stage of election and need not wait till the completion of the election process for filing appropriate election petition.

An aggrieved party can always initiate appropriate proceedings before the competent forum challenging the election and the election process should not be stalled in the midstream. Even the constitution by virtue of Article 329 places upon the courts restrictions regarding the disputes relating to the election. Any election petition can be filed by an aggrieved only once the elections have been completed. The Supreme Court has held that in very few and rare cases a court can and should interfere prior to the elections.

 

COMMERCIAL

Motor Vehicles Act, 1988

HIGH COURT OF MADRAS

Tamil Nadu State Transport Corporation, rep. by Managing Director Vs. Tvl. Ashoka Service, The Regional Transport Authority and The State Transport Appellate (Decided On: 30.04.2008) MANU/TN/0631/2008

Section 217A of the Motor Vehicles Act, 1988- Whether an application for renewal of permit granted under the Motor Vehicles Act, 1939 be considered in accordance with the Section 217A Motor Vehicles Act, 1988

When the Motor vehicles Act, 1988 came into force, the question regarding the applications for renewals of permit under the repeal Act (M.V Act, 1939) arose and tackling the same, the Parliament introduced by Act 27 of 2000, Section 217A to the M.V Act, 1988.The ambiguity was thus removed and if an application for renewal of permit was granted under the M.V. Act, 1939, which was pending at the time of M.V. Act of 1988 coming into force, the same shall be considered in accordance with the provisions contained in repeal Act.

 

FERA

Foreign Exchange Regulation Act, 1947

HIGH COURT OF DELHI

Ajay Bagaria Vs. Union of India (UOI) and Anr (Decided On: 29.04.2008) MANU/DE/0818/2008

Section 68 of FERA: "a person in-charge and responsible for the conduct of the affairs of a company"- Whether the person sought to be arraigned, other than Company, as an accused, should be in charge of the affairs of the company at the time of commission of offence.

A person 'in-charge' implies that the person should be in over all control of the day-to-day business of the company or firm. This inference follows from the wording of Section 23C(2) and Section 68 of FERA. It mentions director, who may be a party to the policy being followed by a company and yet not be in- charge of the business of the company. Further it mentions manager who usually is in charge of the business but not in over-all-charge. Similarly the other officers may be in charge of only some part of business. Further, merely being a Director without an averment that he was in charge of the affairs of the Company and responsible to it for the conduct of its business at the time of the commission of the offence does not satisfy the requirement of the law. The Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla held that the averment must contain the two mandatory elements, i.e., it should state the person sought to be arraigned as an accused, was in actual charge of the affairs of the Company and responsible to it for the conduct of its business and further that such person was in that capacity at the time of the commission of the offence.

 

RIGHT TO INFORMATION

Right to Information Act, 2005

HIGH COURT OF MADRAS

R. Anbazhagan Deputy Manager (Mechanical) Tamilnadu Newsprint and Papers Ltd. (TNPL) Vs. The State Information Commission, The Managing Director Tamilnadu Newsprint and Papers Ltd. (TNPL), The Chief Manager Tamilnadu Newsprint and Papers Ltd. (TNPL) and Mrs. M. Vijaya W/o N. Rajendran. (Decided On: 17.04.2008) MANU/TN/0638/2008

Right to Information Act, Section 8- whether information regarding the income of a person, the same being received from a public authority, is considered as personal information.

A person or an authority receiving monthly income from a public sector undertaking, which is subject to income tax, cannot refuse to disclose the same claiming it to be private information. The right to privacy is subject to an exception, that any publication concerning any public interest becomes unobjectionable, if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. Therefore, a person receiving his salary from a public authority cannot refuse to publish the same, contending such information is private and protected under Article 21 of the Constitution.

 

CIVIL

West Bengal Law Clerks Act, 1997

HIGH COURT OF PATNA

Andhra Pradesh Advocates Clerks' Welfare Fund Act, 1992

Pragatisheel Adhivakta Sahayak Kalyan Sansthan and Anr. Vs.The State of Bihar and Ors. (Decided On: 26.03.2008) MANU/BH/0167/2008

Whether a matter in which the government has to take policy decision regarding enactment of law, is beyond the jurisdiction of Courts.

A matter concerning policy decision, which has to be taken by the government with respect to enactment of law by legislature, is beyond the purview and jurisdiction of Courts. It is for the authorities of the State and the legislature to consider such matter and take appropriate decision.

 

SERVICE

Tamil Nadu Government Servants (Disciplinary and Appeals) Rules

HIGH COURT OF MADRAS

Dr. P. Elangovan Vs. The Commissioner and Secretary, Health and Family Welfare Department, The Director of Medical and Rural Health Services, Teynampet and The Director of Public Health and Preventive, Medicine. (Decided On: 24.01.2008) MANU/TN/0081/2008

Tamil Nadu Government Servants (Disciplinary and Appeals) Rules - Rule 17- Whether a Court or Tribunal has jurisdiction over the functions of disciplinary authority.

The administrative law empowers the departments to conduct disciplinary inquiries whenever any charges are leveled against any person working in such a department. The Supreme Court in Upendra Singh v. Union of India has clearly stated that, in case of charges framed in a disciplinary inquiry, the Tribunal or Court can interfere only if the charges framed are contrary to any law, or no irregularity alleged, can be said to have been made out. The function of the Court/Tribunal is one of judicial review and even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. (H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and Ors. v. Gopi Nath & Sons and Ors)

 

Bihar State Electricity Service Regulations, 1976

HIGH COURT OF PATNA

Gopaljee Sahay Vs. The Bihar State Electricity Board and Ors. (Decided On: 04.04.2008) MANU/BH/0159/2008

Bihar Government Service Code; Electric Supply, Section 79- Whether the Court can interfere in policy matters like ascertainment of retirement age of employees?

Retirement age with detailed terms and condition about retirement is essentially a matter of policy and can be interfered by Courts with only limited grounds. In K. Nagraj V. State of A.P, the Supreme Court has held that courts should not normally interfere with policy matters of a public department. Retirement age is a matter of policy and the courts normally do no meddle with the same, unless there is arbitrariness, irrationality or violation of Constitutional norms.

 

Payment of Gratuity Act, 1972

HIGH COURT OF CHHATTISGARH AT BILASPUR

Chattisgarh housing Board Vs. Appellate Authority Under the Payment of Gratuity Act and Controlling Authority Under the Payment of Gratuity Act (Decided On: 06.05.2008) MANU/CG/0036/2008

Payment of GratuityAct: section 2A(3)- Whether "continuous service" under seasonal establishment is essential to claim gratuity.

It is true that gratuity of workers is no longer a gift but right. However for the purpose of Payment of Gratuity Act, 1972, wherein an employee employed in seasonal establishment, continuous service is essential for the calculation of the same. Under Section 2A(3) of the Gratuity Act, in order to claim continuity in service in case of seasonal establishment, it is necessary that the employee should work for not less than 75 percent of the number of days on which the establishment was in operation during such period.

 

CUSTOMS

Customs Act, 1962

HIGH COURT OF BOMBAY

Commissioner of Custom Vs. Aristo Spinners Pvt. Ltd. (Decided On: 25.01.2008) MANU/MH/0436/2008

Customs Act, 196:2 Sections 27, 27(1) and 130 - Whether bank guarantee furnished in order to secure the due performance of the export obligation be regarded as payment of duty.

No. The bank guarantee is furnished in order to safeguard the interest of the revenue in the event of the importer committing default in performing the export obligation caste upon him for the purpose of availing concession in importing the capital goods. Furnishing of bank guarantee therefore is not equivalent to payment of excise duty for the purpose of securing revenue and the same was held in Oswal Agro Mills Ltd v. Collector of Central Excise.

 

CRIMINAL

Prevention of Corruption Act, 1988

HIGH COURT OF PUNJAB AND HARYANA

Anand Parkash and Anr. Vs. State of Haryana(Decided On: 10.01.2008) MANU/PH/0334/2008

Whether producing of an evidence by the "accomplice" changes his position to that of a "witness."

If an accomplice who is 'particeps criminis' in respect of the actual criminal charges, his witness must be treated as the evidence of an "accomplice" and not that of a "witness". The evidence of the witnesses who are accomplices must be treated as the evidence of accomplice is treated. One must keep in mind that partisan witness, interested witness or accomplice as a witness are all dealt differently under the criminal law and their position does not change by virtue of their producing an evidence. Therefore if an accomplice produces a evidence before the court thinking it might change his position in the eyes of law from an accomplice to a witness, it would not be so.

 
     
 
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