SUPREME COURT

• CRIMINAL LAWS

Roop Singh @ Rupa v. The State of Punjab (Decided on 20.06.2008)

Conviction based on circumstantial evidence - Drawing of Inference of guilt

Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances found to be incompatible with the innocence of the accused or the guilt of any other person.

Hemchand Jha v. State of Bihar (Decided on 13.06.2008)

Common Intention - Application of Section 34 of the Indin Penal Code, 1860 - Distinctive feature of the section

Section 34 has been enacted on the principle of joint liability in the doing of a criminal act and it only is a rule of evidence and does not create a substantive offence. Distinctive feature of the Section is the element of participation in action. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts and circumstances of the case. Prosecution have to establish whether there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of section 34.

Md. Kalam vs. The State of Bihar (Decided on 13.06.2008)

Child Witness - Conviction under section 376 r/w section 511 of the Indian Penal Code, 1860 based on the testimony of Child witness - Acceptability of evidence questioned for want of corroboration

As held by the apex Court in Panchhi and Ors. v. State of U.P., evidence of a child witness cannot be rejected outright but must be evaluated carefully. Greater circumspection is required as a child is susceptible to be swayed by what others tell him and thus is an easy prey to tutoring. The Court is required to assess whether the statement of the victim before the Court is the voluntary expression of the victim and not under the influence of others. In the instant case evidence of the child witness was found to be cogent, credible and free from any influence and thus it had to be treated as corroborative

Inherent Powers of High Court - Scope and exercise thereof - Section 482 of the Code of Criminal Procedure, 1973

Exercise of power under section 482 of the Code in a case of present nature is an exception and not the rule. Section only saves the inherent power which the Court possessed before the enactment of the Code envisaging three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of law, and (iii) to otherwise secure the ends of justice. Courts have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. The Provision merely recognises and preserves inherent powers of the High Courts. In the absence of any express provision all courts, whether civil or criminal possess such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is- made out even if the allegations are accepted in toto.

As categorization of cases done in R.P. Kapur v. State of Punjab instances where inherent power can and should be exercised are (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. However, while dealing with the last situation, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.

HIGH COURT

• INTELLECTUAL PROPERTY RIGHT

DELHI HIGH COURT

India Habitat Centre through its Director Vs. Ms. Sunita Aeren and Ors. (Decided On: 26.05.2008) - MANU/DE/0830/2008

Copyright Infringement - Use of words 'Habitat Centre' in combination - Plaintiff in the present matter sought injunction against the Defendant on the ground that the combination of words 'Habitat Centre' is the property of the Plaintiff and the use of such combination by the Defendant amounts to violation of Plaintiff's rights - Whether use of combination 'Habitat Centre' can be construed as exclusive property of any person singly or jointly

'Habitat Centre' cannot be claimed as the exclusive property. Neither 'Habitat' nor 'Centre' can be allowed to become property of any person singly or jointly. The 'Habitat Centre', 'Cultural Centre', 'Health Centre', 'Shopping Centre', 'Activity Centre' are names which are in public domain and can be used by any person. In the instant case the Plaintiff does not have a prima facie case for injunction to stop Defendant from using 'Indirapuram Habitat Centre' as its name and hence not entitled for interim injunction.

ALLAHABAD HIGH COURT

Sanjai Kumar alias Mallu Vs. Manoj Kumar Sahu and Ors. (Decided On: 17.01.2008) MANU/UP/0375/2008

Jurisdiction - Whether suit under Section 134 of the Trade Marks Act, 1999 could be filed in any court inferior to the Court of District Judge

Suit under Section 134 of the Trade Marks Act, 1999 can only be filed before the District Judge and not before any Court inferior to that of District Judge.

Section 9 of the Code of Civil Procedure also states that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 15 of the Code says that every suit shall be instituted in the Court of the lowest grade competent to try it. The provision of Section 15 are subject to the provision of Section 9 C.P.C. and where there is a specific provision for institution of a suit in the particular Court except that nominated in the Act, shall have jurisdiction to try the suit.

The plain reading of Section 134 of the Trade Marks Act, 1999 made it clear that the suit under this provision cannot be filed in any Court inferior to the 'District Court' having jurisdiction to try the suit.

• SERVICE

MADRAS HIGH COURT

K. Jeganathan Vs. Union of India (UOI) rep. by Director General Border Roads and The Chief Engineer, Project Vartak (Decided On: 21.04.2008) MANU/TN/0728/2008

Fake forged educational certificates - Whether Courts can show leniency where employment or promotion is secured by fraud or deceit

As held in by the apex court in Bank of India v. Avinash D. Mandivikar, apex court, Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence and hence no leniency could be expected from the courts in this matter. In R. Vishwanatha Pillai v. State of Kerala, the court reiterated that a person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false certificate by playing a fraud. Equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud. This case that does not deserve any leniency otherwise it would be giving premium to a person who admittedly committed forgery.

MADRAS HIGH COURT

CENTRAL RESERVE POLICE FORCE ACT

P. Munirathnam Vs Union of India (UOI) rep. by its Secretary, Home Department, Ministry of Home, Deputy Director General of Police, Central Reserve Police Force and Commandant, 63 BN, Central Reserve Police Force. (Decided On: 09.06.2008) MANU/TN/0657/2008

Whether the right to have fair hearing includes right to have a legal representative.

The laws of natural justice cannot be dispensed with when it comes to departmental or disciplinary inquiries. While the right to have fair hearing is a sine qua non for any such inquiry, it also implies that the person also has every legitimate right to have a legal representation. There are instances wherein a person might not be conversant with the language in which the proceedings might be taking place and hence it necessitates the presence of a legal representative or a representation even through a friend. Thus right to have fair hearing includes right to have a legal representative

MADRAS HIGH COURT

The Chairman, Navodaya Vidyalaya Samiti, Ministry of HRD, The Commissioner, Navodaya Vidyalaya Samiti and Hazarika Vs. Dr. T. Murugesan, The Deputy Commissioner/Director Collector, The Additional Deputy Commissioner and The Registrar, Central Administrative Tribunal (decided on -13.6.2008) MANU/TN/0760/2008

Termination - Maintainability of termination questioned

In the instant case, the Respondent allegedly outraged modesty of a girl studying in his school. Detailed inquiry was made into the case and it was found that the behavior of the Respondent towards the girl was not honorable. According to the notification dated 16.12.1993, the NVS had authorized the Commissioner to terminate the services of any employee, who was found prima facie guilty of moral turpitude involved in sexual offence or exhibition of immoral sexual behaviour towards any student after such Summary Enquiry as deemed practicable. It is also the moral obligation of every teacher or "guru" as known as in India to create meaningful person of each student and thus a teacher has been given a pedestrian of the highest decree and therefore it is necessary that all the teachers respect the same. Therefore the termination of the Respondent from service is maintainable.

• FAMILY

BOMBAY HIGH COURT

Principal Judge, Family Court Vs. Nil (Decided On: 12.06.2008) MANU/MH/0456/2008

Divorce by mutual consent - Waiver of statutory period of six months - Whether can be waived by the Trial Court or not

The waiting period of six months (i.e. from the institution of the first motion to the moving of the second motion) is mandatory and cannot be waived by the court of competent jurisdiction. It is a period during which the parties are expected to ponder and seriously consider their decision to sever the matrimonial ties. Thus, the second motion should be entertained and decided in accordance with the provisions of Section 13B(2) of the Hindu Marriage Act by the court upon due application of mind and recording the satisfaction as contemplated under that provision.

Each case needs to be decided by the Court of competent jurisdiction with reference to the facts and circumstances of such case and in accordance with law.

• TAX LAWS

INCOME TAX

GUJARAT HIGH COURT

Harikrishna Family Trust Vs. Commissioner of Income Tax (Decided On: 25.02.2008) MANU/GJ/0338/2008

Whether the rental income from the hire of the building taxable as "income from other sources" or "income from house property" or "income from business"

In the instant case, the assessee trust took a lease of the property at a monthly lease rent, completed the construction work of the building and rented out the whole premises to Posts and Telephones Department. It was held that the income is liable to be taxed as "income from other sources" and not as "income from house property" or "income from business" because the assessee trust at no point of time indulged in any systematic activity so as to treat the assessee as having indulged in business or a venture in the nature of business.

KERALA HIGH COURT

The Commnr. of I.T. Vs. The Co-op. Sugars Ltd.( Decided On: 31.01.2008) MANU/KE/0075/2008

Whether the contribution made paid by the assessee to the State Irrigation Department being part of cost incurred for cement lining of a irrigation canal serving sugarcane cultivators allowable as revenue expenditure under Section 37(1) of the I.T.

The deduction claimed by the assessee was allowable as a revenue expenditure under Section 37(1) of the Income Tax Act because the assessee does not created any asset for himself .He had no personal right over the irrigation canal although an indirect benefit is derived by him out of the expenditure. In Empire Jute Co. Ltd. v. CIT 124 I.T.R, apex court had held that even if enduring advantage is derived from the expenditure incurred, it could still be allowed as revenue expenditure.

• ELECTION LAWS

MADHYA PRADESH HIGH COURT

Raja Ram Ahirwar Vs. State of Madhya Pradesh and Ors.( Decided On: 27.02.2008) - MANU/MP/0127/2008

Person registered in the voter list of any Panchayat, whether can be entered in the voter list of Municipality as well

The proviso (b) of Section 5 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 makes a condition that no person shall be entitled to be registered in the list of voters if he is registered in the electoral roll relating to any other Local Authority. However, a provision had to be made in Rule 9-A of the M.P. Nagar Palika Nirvachan Niyam, 1994 for ensuring that the person whose name is entered into the electoral roll of the Municipality as well as in the voter list of a village for the purposes of Panchayat election does not circumvent the provision of Section 5 of the 1993 Adhiniyam and is registered as a voter, both in the electoral roll relating to the local authority as well as in the electoral roll of a village for Panchayat elections. Therefore, a person can be simultaneously registered in the voter list of Panchayat as well as Municipality.

• TRUSTS AND SOCIETIES & LIMITATION

Ravi Vs. The Commissioner, H.R. and C.E., (Admn. Department) and The Assistant Commissioner, H.R. and C.E., Department

Hereditary trustee of temple under Section 63 (b) of the Hindu Religious and Chartiable Endowments Act - Declaration to this effect

In the instant case, the appeal for the declaration was held to be not maintainable as there was no documentary evidence to establish that the forefathers of the Appellant constructed the suit temple, 150 years ago. It was proved that the account books, relating to the temple were with the village people and they conducted the Kumbabishekam and other festivals of the temple. The decisions regarding the temple were being taken by the important persons of the village. Plaintiff was only performing the Poojas in the temple and had no supporting documents to establish that he was a hereditary trustee of the temple. The Appellant thus was not entitled to declare himself as hereditary trustee of the temple under Section 63 (b) of the Hindu Religious and Chartiable Endowments Act.