SUPREME COURT

• CRIMINAL LAWS

Surendra Koli Vs. State of U.P. and Others  (Decided on 15.02.2011) MANU/SC/0119/2011

Nithari Rape and Murders - Death Sentence awarded to the accused namely Surendra Koli under Sections 302, 364 and 376 of the Indian Penal Code, 1860 - Appeal against confirmation of death sentence by High Court

Held, voluntary confession was made by Surendra Koli before the Magistrate under Section 164 of Code of Criminal Procedure, also corroborated in material particulars. The body parts of the killed girls had been found in the gallery behind the house and in the Nala beside the house. The killings by the Appellant Surendra Koli were horrifying and barbaric. He used a definite methodology in committing these murders. He would see small girls passing by the house, and taking advantage of their weakness lure them inside in a particular house and there he would strangulate them and after killing them he would try to have sex with the body and would then cut off their body parts and eat them. Some parts of the body were disposed off by throwing them in the passage gallery and drain (nala) beside the house. Thus, the relevant house had infact became a virtual slaughterhouse, where innocent children were regularly butchered. Case found to fall within the category of rarest of rare case and hence no mercy could be shown to the Appellant Surendra Koli. Appeal dismissed.

Sheo Shankar Singh Vs. State of Jharkhand and Anr. (Decided on 15.02.2011) MANU/SC/0116/2011

Murder - Conviction - Whether High Court was justified in enhancing sentence and imposing the extreme penalty of death upon the Appellants

Held, the instant case rested upon the deposition of the eyewitnesses to the incidence, which suggested that on the date of incidence and proximate in point of time the accused A1 and A2 were seen together riding a black coloured motorcycle, without a registration number. There was no infirmity in the evidence of the witnesses. Evidence also established seizure of the motorcycle on which the deceased was riding from the place of incidence and that was being driven by accused A1. Medical evidence also supported the version of one witness, that he sustained injuries when he fell from the motorcycle being driven by him after the deceased who was on the pillion was shot at by accused A2. Thus High Court rightly convicted accused A1 and A2 under section 302 of the Indian Penal Code.

Whether the present case is one of those rarest of rare cases in which the High Court could have awarded to the appellants the extreme penalty of death

Held, Appellants were not professional killers. Even according to the prosecution they were only a part of the coal mafia active in the region indulging in theft of coal from the collieries. The deceased being opposed to such activities appears to have incurred their wrath and got killed. Moreover even though deceased was a politician. The murder was not politically motivated. Also there was difference of opinion on the question of sentence to be awarded to the convicts. The Trial Court did not find it to be a rarest of rare case and awarded life sentence only which sentence the High Court enhanced to death. In view of all circumstances, the death sentence awarded to the Appellants deserves to be commuted to life imprisonment. Thus instead of sentence of death awarded by the High Court, the Appellants shall suffer rigorous imprisonment for life. Appeal partly allowed.

Budhadev Karmaskar Vs. State of West Bengal (Decided on 14.02.2011) MANU/SC/0115/2011

Brutal murder of sex worker - Conviction under Section 302 of the Indian Penal Code, 1860 - Order of conviction whether proper

Held, the death was due to the effect of the injuries as noted ante-mortem in nature; that all the injuries as noted in the post mortem examination report might be caused if a person pushed against the wall and it may be homicidal in nature. The injuries showed the brutality of the crime. The head of the deceased was battered again and again in a hideous and barbaric manner. No reason was found to disbelieve the testimony of the eyewitnesses, which was also corroborated by the medical evidence. The Appellant-accused had committed murder in a brutal manner of a helpless woman and hence deserved no sympathy. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21of the Constitution. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body.

Direction given to the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail about who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. Appeal dismissed.

• SERVICE LAWS

State of Orissa and Anr. Vs. Mamata Mohanty  (Decided on 09.02.2011) MANU/SC/0110/2011

Service - Appeal by the appellant State against order of High Court allowing the petition of Respondent seeking direction to the appellant State to revise her pay scale at par with UGC scale

Held, procedure prescribed under the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 had not been followed while making the appointment of the Respondent at initial stage. At the time of appointment, there had been a requirement of 54% marks in Masters Course; however, Respondent did not have such percentage of marks. Respondent's appointment had been approved by the 2nd appellant after a long time of her initial appointment therefore, not eligible for the post of Lecturer. Fixation of eligibility fell within the exclusive domain of the executive and once it had been fixed by the State authorities under the 1974 Rules, the question of according relaxation by the concerned University could not arise and, therefore, the order of condonation was nullity. Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. Further, such condonation was in violation of fundamental rights enshrined under articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks. Power to grant relaxation in eligibility had not been conferred upon any authority, either the University or the State and in absence thereof, such power could not have been exercised. In case a person could not get the benefit of grant-in-aid scheme unless he completed the deficiency of educational qualification, question of grant of UGC pay scale did not arise. Respondent's case had been entertained and relief had been granted by the High Court without considering the issue of delay and latches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time. Grievance of the Respondent that not upholding the order passed by the High Court in her favour would amount to a hostile discrimination was not worth acceptance for the reason that article 14 of the Constitution envisages only positive equality. Concept of adverse possession of lien on post or holding over were inapplicable in service jurisprudence. However, in view of the elapse of long time, termination of the Respondent was not desirable. Respondent, therefore, was not entitled to the UGC scale prior to the date of acquisition of higher qualification. Appeals disposed of.

S.K.M.Haider Vs. Union Of India & Ors. (Decided on 14.02.2011) MANU/SC/0113/2011

Service - Entitlement to Promotion - Whether appellant had been rightly denied promotion to the post of Ticket Collector (TCR), Group `C' post, on account of his having not been declared medically fit in Class B-2 under Para 510 of Indian Railway Medical Manual (for short, `IRMM').

Held, there seems to be no rational basis subsisting in relation to the object set out in Para 510 of the Medical Manual for categorizing the post of Ticket Collectors under Class B-2. Categorization of posts for the purpose of vision tests should have nexus with the object set out in Para 510 of the Medical Manual. Having regard to the objective of division of groups/classes for the purpose of vision tests under Para 510 of the Medical Manual, the post of Ticket Collectors could not be held to be covered by Class B-2 but rather would be covered by Class C-2. Any inconsistency in categorization of Railway posts should not operate against the appellant in getting promotion to the post of Ticket Collector. Appellant, therefore, could not have been denied promotion to the post of Ticket Collector as he had passed the departmental test and was provisionally selected for the post of Ticket Collector and had been declared medically fit in Class C-2. Impugned judgment, therefore, was set aside. Respondent Railways directed to consider the appellant's claim for promotion to the post of Ticket Collector on the basis of his medical fitness in Class C-2 and his empanelment in the provisional list. Appeal allowed.

• CIVIL LAWS

Neha Arun Jugadar and Anr. Vs. Kumari Palak Diwan Ji (Decided on 14.02.2011) MANU/SC/0112/2011

Transfer petition - Transfer sought on the ground of territorial jurisdiction

Held, an order of transfer of a case could be passed where both the Courts, namely, the transferor court as well as the transferee court, had jurisdiction to hear the case and the party seeking transfer of the case alleged that the transferee court would be more convenient because the witnesses were available there or for some other reason it would be convenient for the parties to have the case heard by the transferee court. However, there was no question of transfer of a case, which was filed in a court, which had no jurisdiction at all to hear it. Hence, in a case where a party alleges that the court where the case was pending had no jurisdiction, he should apply to that court for dismissing it on this ground; there was no question of transfer of such a case. Transfer petition dismissed.

• INDIRECT TAXATION

Excise Laws

The Commissioner of Central Excise, Visakhapatnam Vs. Mehta and Co. (Decided on 10.02.2011) MANU/SC/0107/2011

Show cause notice - Removal of goods in question without payment of duty with an intention to evade its payment - Demand of duty made - Appeal challenging the demand on the ground of same being barred by limitation

Whether or not the demand for payment of duty is barred by limitation

Held, no issue with regard to the demand raised by the Appellant as time barred was either raised or discussed by the Commissioner. A show cause notice was issued to the assessee making it a specific case that the assessee manufactured excisable goods at the site of the customer and removed the same without payment of duty of excise with an intention to evade payment of duty when the contract clause between the Respondent and Hotel clearly mentioned that the contractors quoted rate shall also include the excise duty. Hence, such conscious action on the part of the assessee had clearly established the intention to evade payment of duty of excise. Thus, demand for payment of duty was not barred by limitation.

Whether the items like chairs, beds, tables, desks, etc., affixed to the ground could be said to be immoveable assets and not liable to excise duty

Held, a perusal of the records would indicate that the Commissioner in his order had listed out various items, which were held as furniture and while doing so, he had scrutinized the records to determine the immovability or movability of the items. Further he had given deductions for the items held as immovable. So far as the items such as chairs, tables etc., the same were admitted to be furniture by the assessee himself. Hence, Commissioner rightly confirmed the demand with penalty in respect of said items. Order of the Tribunal set aside and order of the Commissioner restored. Revenue's appeal allowed.

• Constitutional Laws

Electronics Corporation of India Ltd. Vs. Union of India & Ors (Decided on 17.02.2011)

Approval of Committee on Disputes (CoD) for initiating litigation by PSUs - Directions of the Supreme Court in connection related thereto - Whether such mechanism has outlived its utility

Held, the idea behind setting up "Committee on Disputes" (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. Despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. On same set of facts, clearance is given in one case and refused in the other.

This has led a PSU to institute a SLP in this Court on the ground of discrimination. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. Thus, the mechanism has outlived its utility. In the changed scenario it is imperative to recall the directions of this Court in its various Orders. Hence recall of orders directed. Appeal dismissed.

HIGH COURTS

• MOTOR VEHICLE LAWS

DELHI HIGH COURT

The National Association of The Deaf Vs Union of India & Another (Decided on 14.02.2011) MANU/DE/0357/2011

Public Interest Litigation - Whether authorities rightly denied the driving licences merely on the ground of deafness without any specific medical opinion or aid of any certificate whether deafness, per se, impairs or affects the driving skills of an applicant

Held, the claim put forth by the petitioners that they should not be debarred from getting a licence, is not justified. For grant of a learner's licence, filing of medical certificate is not required but the applicant is required to go through the test as stipulated under Rule 11 of the Central Motor Vehicle Rules, 1989. . For grant of a driving licence, one has to satisfy the conditions precedent as postulated under Section 9 of the Motor Vehicles Act,1988 and pass the test as stipulated under Rule 15 of the 1989 Rules. The claim of further privilege by totally deaf persons as a special category, is not permissible. However if an applicant is totally deaf, he has to be called for the test if he applies for a learner's licence without the medical certificate and if he passes the test as required under Rule 11, he shall be granted the learner's licence as that is the statutory requirement. Similarly, if a person belonging to the said category satisfies the necessary criteria, he shall be allowed to obtain the licence. Special conditions which are permitted by other countries for grant of licence to the persons who are completely deaf is the domain of the legislature, for the legislature understands the prevalent conditions in a set up where separation of power is an insegregable facet of the basic structure of the Constitution of India. Writ petition accordingly disposed of.

• CRIMINAL LAWS

BOMBAY HIGH COURT

The State of Maharashtra Vs. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid, decided on 21.02.2011

Confirmation of death sentence - Trial Court directed death sentenced to Ajmal Kasab, the lone accused caught in Mumbai terror attacks - Reference before High Court for confirmation

Held, the Court was of the view that there is no alternative but to confirm the death sentence as this indeed was the rarest of rare cases involving uncommon and unprecedented crime for which sentence of life imprisonment is inadequate. The Appeal filed by Kasab was dismissed and death sentence was accordingly confirmed.

MADRAS HIGH COURT

G.Thangiah vs The State Of Tamil Nadu (Decided on 14.02.2011)

Service - Improper conduct - Petitioner Police Constables allegedly beat a convict to death in custody - Penalty imposed upon the petitioners proposing to cut an amount from pension for a period of one year - Whether action against the petitioners is vindictive and whether it is arbitrary and illegal, especially when the similarly situated persons have been exonerated

Held, as per law, in cases where the employees were involved in the same incident, all of them should be treated equally. If the department wanted to proceed, it had to proceed against all or else it should drop the proceedings against all and it could not pick and choose persons for the purpose of victimization. By showing leniency in favour of other six officials who were indicted in the RDO report, while distinguishing that in respect of the petitioners, the onerous duty had not been discharged on the part of the respondents that for treating the petitioners differently there were adequate records available based on the report of the Enquiry Officer. No specific overt act was attributed against any of the police officials in the Enquiry Report and while so, when all others were exonerated, it was not known under what circumstances the petitioners had been targeted. Further, disciplinary proceedings initiated after 25 years of the incident especially after the petitioners were allowed to retire, prejudice caused to them would be enormous. In the absence of any acceptable explanation for the unexplained delay, the impugned orders of punishment passed by the respondents were set aside on the grounds of discrimination, inordinate delay and non-application of mind. Direction issued to the respondents to pay all consequential retirement benefits and to re-fix the pension of the petitioners. Petitions allowed.

• ENVIRONMENT LAWS

BOMBAY HIGH COURT

Andhashraddha Nirmulan Samity Maharashtra, through its Chairman, Dr. Narendra Achut Dabholkar and another Vs State of Maharashtra and others (Decided on 08.02.2011)

Environment - Idol immersion - Water bodies being polluted - Petition filed seeking direction that respondent No.1 be directed to give directions to the idol makers and local authorities to take all possible measures to prevent water pollution within the State during the Ganpati festival.

Held, Central Pollution Control Board constituted a Committee, which framed guidelines for idol immersion. These guidelines would be helpful to the concerned agencies including the State Government against whom the directions are sought in the present writ petition, in formulating action plan/strategies for maintaining cleanliness and preserving the environment. Thus guidelines would be useful to prevent pollution of water bodies. Prayers in the writ petition, in view of the guidelines for idol immersion, framed and published by the Central Pollution Control Board, Ministry of Environment and Forests, stand satisfied. Writ petition disposed of.

• FAMILY LAWS

BOMBAY HIGH COURT

Minoti Anand and another Vs Subhash Anand and others (Decided on 09.02.2011) MANU/MH/0127/2011

Applicability of Foreign Marriage Act - Parties got married in Japan and the marriage was registered under section 16 of the Foreign Marriage Act, 1954 - Parties at dispute with regard to the matrimonial reliefs that could be claimed by them consequent upon such solemnisation and registration - The husband filed petition for dissolution of marriage under section 13(1)(i)(a) of the Hindu Marriage Act - Whether the relief claimed by the husband for dissolution of marriage and relief in respect of properties can be granted 

(A) Relief of dissolution of marriage

Held, under section 18(1) of Foreign Marriage Act, the matrimonial reliefs would be granted to the parties under the Special Marriage Act. However, if their marriage was not solemnised under the Foreign Marriage Act, though the marriage took place in a foreign country, the grant of relief in respect of such marriage would be provided under any other law; in the case of these parties, who were Hindus, it would be the Hindu Marriage Act. In the instant case, section 18(4) would not apply to the parties because the marriage was solemnised under the Foreign Marriage Act and there was conclusive evidence of that fact from the certificate of registration itself. Hence, petition filed under the Hindu Marriage Act could not be sustained, as such a petition was barred under section 18(1) of the Foreign Marriage Act.

(B) Relief in respect of properties

Held, section 27 of the Hindu Marriage Act deals with the provision to be made in respect of the properties of the parties in a proceeding under the Hindu Marriage Act. The properties, which were contemplated in the section, were the properties presented at or about the time of marriage. However, the mandate under that section was only with regard to the properties which belong jointly to both the husband and the wife. With respect to reliefs sought with regard to various properties, the petition was barred by section 7 Explanation C of the Family Courts Act. Petition rejected. Husband entitled to file a fresh petition in the Court of Law.

Smt. Nanda Santosh Shirke Vs. Smt.Jayashree Santosh Shirke & Anr. (Decided on 15.02.2011) MANU/MH/0154/2011

Grant of legal heirship certificate under Bombay Regulation Act VIII of 1927 to the Respondent by order passed in Miscellaneous Petition No.31 of 2007- Revocation of the same sought by petitioner claiming to be the legally wedded wife of the deceased Santosh Atmaram Shirke, who expired on 21st August 2005.

Held, in this case, both the Petitioner and the Respondent claimed to be married to the deceased. Whereas the Petitioner produced the marriage certificate of the Marriage Registrar, Thane, the Respondent only produced a so-called certificate of Sarpanch about her residential status. Both the Petitioner and the Respondent produced the birth certificates of their children. Though the Respondent also produced an order of maintenance showing that she claimed to be his wife and had applied for and obtained an order of the Court in that behalf for herself and her children, the marriage of the Respondent with the deceased had not been shown. The date of the marriage was not disclosed. The certificate of the Sarpanch showing that she is the first wife of the deceased could be accepted in the absence of any evidence from public record. The Petitioner being the legally wedded wife of the deceased would be entitled to succeed to his estate7 MPT-Lg-294 along with her three children. The three children of the Respondent would also be entitled to succeed to his estate upon the presumption of legitimacy. The Respondent herself would not be entitled to succeed to his estate as her marriage, if any, is void. Consequently, the legal heirship certificate issued to the Respondent is revoked. The Petitioner and all the six children shall be entitled to obtain the legal dues payable to the deceased Santosh A. Shirke in equal share. The pension shall be payable only to the Petitioner as per the Maharashtra Civil Service Pension Rules, 1982.

• DIRECT TAXATION

ITAT, Lucknow Bench

Amar Nath Agarwal, HUF Vs. The ITO (Decided on17.02.2011) MANU/LU/0054/2011

Appeal by the assessee against the order of the ld. CIT(A), Muzaffarnagar, holding concurrent charge of the CIT(A)-II, Kanpur relating to the assessment year 2001-02 - Whether an ex-parte order dated 20.11.2010 passed by CIT (Appeals) disposing of the appeal on 20.11.2010 was justified when the date for filing the written submissions was 25.11.2010

Held, CIT (Appeals) has failed to appreciate the facts and circumstances of the case and has arbitrarily proceeded to dispose of the appeal ex-parte. Learned CIT(A) has passed an ex parte order dated 20.11.2010 when the date for filing the Written Submission was 25.11.2010. In that view of the matter, the order of the ld. CIT(A) is contrary to facts, bad in law and deserves to be quashed. Even otherwise also, the ld. CIT(A) has not afforded an adequate opportunity of being heard to the assessee in the matter. Right of appeal wherever conferred includes a right of being afforded an opportunity of being heard, irrespective of the language conferring such right. That is a part and parcel of the principle of natural justice. Where an authority is required to act in a quasi-judicial capacity, it is imperative to give the appellant an adequate opportunity of being heard before deciding the appeal. Order of the ld.CIT(A) is set aside in toto and matter is restored to his file with a direction to decide the appeal afresh on merits in accordance with law after affording due and reasonable opportunity of being heard to the assessee. Appeal allowed for statistical purposes.

ITAT, Visakhapatnam Bench,

Smt. P. Bhagyalakshmi, Visakhapatnam Vs. ACIT, Circle-4(1) Visakhapatnam (Decided On 17.02.2011) MANU/IV/0053/2011

Penalty levied under section 271(1)(c) of the Income Tax Act, partially confirmed by the learned CIT (A) - Whether the cash credits addition made would fall under both the categories of concealment of particulars of income and the furnishing of inaccurate particulars of income.

Held, addition in the instant case pertains to Cash Credits added under section 68 of the Act. From the order of the learned CIT (A), we notice that the assessee has filed confirmation letters obtained from the creditors in support of the said cash credits. The ITAT has confirmed the addition only to the extent the confirmation letters were not found to be satisfactory. Thus it is not a case, where the assessee has altogether failed to discharge her responsibility. On the other hand, it is seen that the assessee has furnished all the details that were available with her. Hence, under the facts of the instant case, the cash credits addition made would not fall under both the categories of concealment of particulars of income and the furnishing of inaccurate particulars of income. No merit in levying penalty on the said addition. Order of Learned CIT(A) set aside the and direction given to Assessing Officer to delete the penalty that was confirmed by Learned CIT(A). Appeal of the assessee is allowed.

• RIGHT TO INFORMATION

CENTRAL INFORMATION COMMISSION

Shri Avinash Prabhune Vs. Ministry of Railways Railway Board (Decided on 07.02.2011) MANU/CI/0193/2011

Transfer of RTI application from one office to another - Denial of requested information - Whether penalty should be imposed on PIO , Rly. Board for not transferring the RTI application to the concerned Zonal Railways within the mandatory period of 5 days as prescribed in the RTI Act

Held, in the instant case despite the Complainant's repeated contentions that information had been denied to him with malafide intentions, the Commission found no reason to believe that any information had been refused with a malafide intention although it was agreed that the PIO in the instant case had not transferred the RTI application within the stipulated period of 5 days. There was no attempt to hide the information since he had provided whatever information was available with him and had indeed transferred the RTI application to the Zonal Railways directing the PI Os to provide the information directly to the Appellant. On being unable to find any reasons for considering that the RTI application was deliberately transferred late with the intention of withholding or delaying information to the Complainant, the Commission condoned the delay in transfer with a strict warning to the PIO not to take the RTI Act lightly and to ensure compliance with the provisions therein, in future.

The Appellant had been harassed due to transfer of application to various Zonal Railways and due to the delay in receipt of the information from the Zonal Railways as a consequence of transfers. His demand for compensation for the financial detriment suffered by him was agreed to and the Public Authority (Railway Board) directed to pay an amount of Rs. 4266/- towards travel expenses incurred by the Complainant in attending the hearing. Complaint accordingly disposed of.