SUPREME COURT

• CRIMINAL LAWS

State of Maharashtra and Ors. vs. Zubir Haji Qasim (Decided On: 11.07.2008)

Rights of detenu on representation by legal practitioner - If disallowed whether detrimental to individuals right to liberty as guaranteed by the Constitution of India - Application of section 8(e) of the COFEPOSA Act, 1974

While Section 8(e) of the COFEPOSA Act, 1975 disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer - Request by a detenu for legal assistance would have to be considered on its own merits in each individual case - Detnu although has no right under Section 8(e), to legal assistance in proceedings before the Advisory Board, he is entitled to make such a request to the Board and the Board is bound to consider such request when made - Detention of a citizen under any of the preventive detention enactments is a serious and severe invasion on the Fundamental Rights guaranteed to citizens under Articles 19 and 21 of the Constitution - Representation made by a detenu for legal assistance before the Advisory Board was to be considered not perfunctorily but with due application of mind, since in each case of detention the liberty of an individual is involved.

Moti Lal Vs. State of M.P. (Decided On: 15.07.2008)

Conviction for offence punishable under sections - 450 and 376(1) of the Indian Penal Code, 1860 based on the evidence more particularly of the prosecutrix - Conviction challenged for there being no corroboration of evidence of prosecutrix and also the punishment given as hard.

The physical scar on a rape victim may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole.

The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, married women and respond by imposition of proper sentence. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced.

Asraf Ali Vs. State of Assam (Decided On: 17.07.2008)

Object of Section 313 of the Code of Criminal Procedure - Accused challenged conviction under section 304 Part II IPC on the ground that the questions put to him in the examination under Section 313 of the Cr.P.C. did not focus on the evidence on record and he was therefore prejudiced because no definite accusations or statement of any witness was brought to his notice.

Section 313 itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". The ultimate test in determining whether or not the accused has been fairly examined under Section 342, as mentioned in Jai Dev v. State of Punjab, would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. However at the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.

• LABOUR AND INDUSTRIAL LAWS

Harijan Mangri Siddakka and Ors. vs. Oriental Insurance Co. Ltd. and Anr. (Decided On: 16.07.2008)

Liability of Insurance Company on claim sought as compensation under Workmen's Compensation Act in respect of persons employed as workmen/labourer in a tractor and trailor combination, duly insured, which collapsed from the quarry smothering the workmen to death - Insurer questioned the liability imposed on the ground that there was no proximate connection between the use of the vehicle and the actual cause of death

This would depend upon the factual scenario in each case and there cannot be any strait- jacket formula to be applied. The expression "use" in the Statute is with reference to "use of the motor vehicle" and whether there was a use of the motor vehicle has to be factually analysed. The instant case was remitted back to the High Court since the factual position in the present case was not examined in detail.

Rajasthan Lalit Kala Academy Vs. Radhey Shyam (Decided On: 11.07.2008)

Termination held to be illegal - Whether the relief of reinstatement ordinarily available to the employee with full backwages can be granted automatically.

Once the termination of service of an employee is held to be illegal, the relief of reinstatement is ordinarily available to the employee. But the relief of reinstatement with full back-wages need not be granted automatically in every case where the Labour Court/Industrial Tribunal records the finding that the termination of services of a workman was in violation of the provisions of the Act. For this purpose, several factors, like the manner and method of selection; nature of appointment--ad hoc, daily-wage, temporary or permanent etc., period for which the workman had worked and the delay in raising industrial dispute, are required to be taken into consideration.

G.M. ONGC, Shilchar v. ONGC Contractual Workers Union (Decided on 16.05.2008) - MANU/SC/2784/2008

Whether the High Court has the authority to enquire as to whether a finding arrived at by the Tribunal was based on evidence and to correct an error apparent on the face of the record.

High Court would be fully justified in interfering with an Award of an Industrial Court on account of a patent illegality and not otherwise.

• COMPANY LAWS

Bakemans Industries Pvt. Ltd. v. New Cawnpore Flour Mills and Ors. (Decided on 16.05.2008)

Winding up - Jurisdiction of Company Court - Proceedings under Section 29 of the State Financial Corporations Act, 1951 - Whether power of a Company Court to sell the property of a company vis-à-vis the power of the Financial Corporation can be merged.

Company Judge could exercise its jurisdiction only in terms of the Companies Act and not in terms of Section 29 of the Act of 1951. If the property, which was put to auction, was the property over which the fate of the creditors depended, the company Court, in exercise of its equity jurisdiction has to adopt a fair procedure. Where an Order is passed in total disregard of the mandatory provisions of law, the Order itself would be without jurisdiction.

HIGH COURT

• CIVIL LAWS

MADRAS HIGH COURT

Wipro Limited, Thiru Vi Ka Industrial Estate rep. by its Legal Manager Vishal Mittal and Wipro Chandrika Limited, rep. by its Authorised Signatory Vishal Mittal Vs. Oushadha Chandrika Ayurvedic India (P) Limited, rep. by its Managing Director K.S. Kochumon, Oushadha Chandrika Research Centre and Narayana Stores (Decided On: 29.02.2008) MANU/TN/0449/2008

Whether the High Court has the jurisdiction to entertain the suits filed by the Appellants under Section 134 of the Trade Marks Act, 1999 and Section 62(2) of the Copyright Act, 1957 respectively or has no jurisdiction on the ground that the parties to the suit not residing within the territorial limits of the Court nor their principal place of businesses located within its territorial limits

Section 62 of the Copyright Act and Section 134 of the Trade Marks Act prescribe an additional ground for attracting the jurisdiction of a Court over and above the normal ground, as laid down in Section 20 of the Code of Civil Procedure (C.P.C.). A special right is conferred on the proprietor of the registered trademark to institute a suit for infringement of any trademark or copyright in the district within whose jurisdiction he resides or carries on business. The provision contained in non-obstante clause by using the phrase "notwithstanding anything contained in the C.P.C or any other law for the time being in force" is made with a view to give a overriding effect to the said provision. It is equivalent to saying that the provision would hold the field notwithstanding anything contained in the C.P.C or any other law for the time being force. Moreover, by virtue of Section 120 of the C.P.C, the provisions of Section 20 are not applicable as far as High Court is concerned.

The expression "carries on business" in the Copyrights and Trademarks Act will only convey that wherever there is a business activity, be it the principal place or branch or branches, the party is said to carry on business in all such places. Therefore, court has jurisdiction to try the case.

• INTELLECTUAL PROPERTY RIGHTS

Madras High Court

J.B. Khanna & Company, Madras v. S. Asad(Decided On: 28.03.2008) MANU/TN/0616/2008

Whether infringement would come into play if the impugned picture is not an exact replica of the complainant's picture

Copyright infringement with respect to a work of art or a picture would come into existence only if the impugned picture was taken from the picture of the complainant. However, there need not be an exact reproduction as every intelligent copying introduces a few changes. The effect which produces upon the mind by a study of the two pictures should be to the end that the Respondents' picture is nothing but a copy of the picture of the Complainant

• LABOUR AND INDUSTRIAL LAWS

BOMBAY HIGH COURT

The State of Maharashtra through the Regional Dairy Development Officer and The General Manager, Government Milk Scheme Vs. Narayan Babarao Lonikar and The Learned Judge (Decided on 25.06.2008 ) MANU/MH/0541/2008

Work on daily wages - Petitions under section 33C(2) of the Industrial Disputes Act, 1947 claiming difference of wages on the principle of "equal pay for equal work" - Claim sought on the basis that the engagement in work has been there continuously for several years and thus entitled to regular scale increments

Claim for permanence by casual worker-A casual worker do not have right to regular or public employment unless they are selected after following due procedure. As per Section 25F and 25N of the Industrial Disputes Act of 1947 merely because an employee has rendered 240 days continuous service that by itself does not give rise to a claim for permanence.

• TRUSTS AND SOCIETIES

BOMBAY HIGH COURT

Yashwant Dagdu More v. Mayuresh Builders and Ors.( Decided On: 23.06.2008) MANU/MH/0538/2008

Whether a decree passed by a court can be set-aside on the ground of lack of pecuniary jurisdiction

A suit even if has been decided by a Court not having pecuniary jurisdiction, the Defendants cannot succeed unless they demonstrate that some prejudice has been caused to them. A decree passed by a Court not competent to hear the suit cannot be set aside, except on the ground of prejudice.

• TRIBUNALS

Trademark Act

Intellectual Property Appellate Board, Chennai

Plus Systems, Inc. and Visa International Service Association Vs. Plus Computer Systems Ltd., Assistant Registrar of Trade Marks and The Registrar of Trade Marks (Decided On: 29.01.2008) MANU/IC/0001/2008

Entitlement for registration of trademark-

Section 18 of Trademarks Act does not provide that actual user is necessary for acquisition of proprietary right in a trademark. An intention to use and register the trademark appears to be sufficient.

Société des Produits Nestlé S.A. Vs. Super Star Confectionery Co. (P) Ltd.(Decided On: 13.02.2008) MANU/IC/0002/2008

Locus Standi - Filing of application for rectification or removal of registered trademark from Trade Mark Register-

Whenever it can be shown that the Applicant is in the same trade as a person who has registered the trade mark and whenever the trademark, if remaining on the register would or might limit the legal rights of the Applicant, he has a locus standi to be heard as an aggrieved person and file application for removal or rectification of such registered trademark.