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SUPREME COURT • CRIMINAL LAWS State of Rajasthan Vs. Talevar and Anr. (Decided on 17.06.2011) MANU/SC/0705/2011 Acquittal - Challenged against thereto - Additional District and Session judge convicted the Respondents offences punishable under Section 395, 396 and 397 of the Indian Penal Code, 1860 (IPC) on the basis of recovery made on the disclosure of the accused - High Court in appeal acquitted the Respondents - Hence this appeal - Whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements Held, where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof. In the instant case, recovery of articles was made on the disclosure by accused Kuniya at different dates. Thus, it is evident that recovery on the disclosure statements of either of the Respondents/accused persons was not in close proximity of time from the date of incident. The law on the issue is settled to the effect that only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The appeal lacks merit and is accordingly dismissed. Ghure and Ors. Vs. State of Rajasthan, (Decided on 17.06.2011) MANU/SC/0706/2011 Conviction - Challenge against thereto - Trial Court convicted the Appellants for offences charged under Section 395,396 and 397 of Indian Penal Code, 1860(IPC) which was subsequently upheld by the High Court - Hence this appeal - Whether the High Court was correct in upholding the conviction awarded by the Trial Court Held, There are concurrent findings of fact so far as the involvement and participation of all the six accused-Appellants are concerned. They had been properly identified in the Test Identification Parades as well as in the Court by the witnesses. So far as the recovery is concerned, it stood proved by PW.34 the Investigating Officer that on the disclosure statements made by the accused under Section 27 of the Indian Evidence Act, 1872 and at their instances, he had recovered the stolen articles, alleged gun, revolver, pellets, scooter and an ambassador car used by the Appellants at the time of committing dacoity. He also faced grilled cross-examination at length, but nothing came out from his statement which may enable us to draw an adverse inference against the prosecution. The post-mortem report of Smt. Anita Yadav and Gopal Nepali stood proved by Dr. Jitendra Bundel (PW.21) . The recoveries made at the instances of the Appellants stood proved by examining the panel witnesses, except in case of recovery made on disclosure statement of Ghurelal in respect of one gun of 12 bore live cartridges, one golden ear ring, one necklace of gold, one Iliayachi Dani made of silver, one silver spoon and one silver bowl, as the two panch witnesses, namely, Sher Singh (PW.30) and Udaibir Singh (PW.31) turned hostile. Both the courts below have held that the recovery from Ghurelal, one of the accused, cannot be dis-believed merely because the panch witnesses turned hostile. We do not find any cogent reason to take a view contrary to the view taken by the two courts below. The appeal lacks merit and is accordingly dismissed.
HIGH COURTS • Criminal Laws BOMBAY HIGH COURT Dinesh Vitthal Patil and Anr. Vs. State of Maharashtra and Ors. (Decided on 22.06.2011) MANU/MH/0756/2011 Issuance of Notice - Challenged on ground that Petitioners are social workers and carrying out lawful agitations to subserve the public cause in the area of their residence - Sections 110(e)(g) & 111 of Code of Criminal Procedure, 1973 (Cr.P.C) - Whether this Petition under Article 226 to challenge the show cause notice issued by the Authority under Section 111 of the Code is maintainable? Held, well established that declining to interfere in exercise of writ jurisdiction under Article 226 against a show cause notice issued by the Authority is matter of prudence. The Court has jurisdiction to consider the questions relating to validity of the show cause notice issued by the Authority, which, however, is exercised with circumspection in appropriate cases such as it is apparent from the face of the record that the proposed action is palpably untenable or colourable exercise of power. The petitioners have asserted that the proposed action initiated against the petitioners is malafide exercise of power. However, the pleadings do not contain material facts to substantiate the argument that the proposed action is the outcome of the malafide exercise of power by the concerned Officer, in fact. No allegation has been made against any particular officer nor the concerned officer has been named as party respondent to take forward such a plea. Indeed, it is open to the petitioners to make good the argument that the proposed action is malafide in law. In the Petition, it is asserted that the proposed action has been resorted to by the Authority having his Office at Nashik. Whereas, the petitioners are residents of Malegaon which is almost 105 kilo meters away, that too, in respect of incidents taken place at Malegaon. This, by itself, in our opinion, cannot be the basis to interfere with the proposed action and more so because of the explanation offered by the respondents on affidavit that the Authority empowered to initiate action under the said provisions is having his Office at Nashik. The said power has been invested in the Special Executive Magistrate posted at Nashik in terms of Government Resolution. In that sense, it is not possible to countenance the grievance of the petitioners that the proposed action has been resorted to by the Authority at Nashik only with a view to harass the petitioners. Thus, the argument regarding inconvenience being caused to the petitioners because of the distance, is rejected. BOMBAY HIGH COURT Anandt Hiraman Ghatole Vs. Sau. Nirmala Dinesh Hazara, Sau. Sangeeta Raju Sonbarase and Shri Raju Madhavrao Sonbarase (Decided on 20.06.2011) MANU/MH/0769/2011 Issuance of Process - Challenged against thereto - Section 202 of Code of Criminal Procedure, 1973 (Cr.P.C.) - JFMC Chandrapur held that Accused Nos. 1 with the help accused 2 and 3 prepared false marriage certificate and on the basis of it tortured complainant and defamed her hence Ordered issuance of process for offence punishable under sections 420, 468, 471, 500 read with section 34 Indian Penal Code, 1860 (IPC) - Whether it was mandatory on the part of the Magistrate to conduct an enquiry under section 202 Cr.P.C before ordering issuance of process Held, In the present case, it appears that the learned JMFC, Chandrapur had already taken cognizance of the offences on the basis of complaint, verification of the complainant and the documents submitted . The amendment effected in Section 202 Cr.P.C. in relation to accused persons residing outside the territorial jurisdiction of the Magistrate sufficient enquiry is required to be made by the Magistrate as process cannot be issued in a mechanical manner upon perusal of the complaint and verification statement only. Looking to the avowed object of the amendment this Court had made certain observations so as to record that it is duty of the Court to give full effect to the provisions of law and respect the wisdom of the Legislature behind the amendment. In the facts and circumstances of that case, it was held that the Magistrate had committed error of law to issue process against the accused who were beyond his territorial jurisdiction. However, looking into the averments in the complaint, verification, documents sought to be relied upon by the complainant and the order which is impugned herein and also considering the view of the Apex Court tin K.T.Joseph's case (supra) since the learned Magistrate has already taken cognizance of the offences he shall have discretion to record further sworn statements, if necessary. When Magistrate apply his mind at pre-cognizance stage he may order investigation as contemplated under section 156(3) or apply his mind with a view to proceed further u/s 200 and subsequent sections as contemplated under Chapter XV of the Code of Criminal Procedure. The process under section 204 Cr.P.C. may be issued if there is sufficient ground to proceed further. The Magistrate has to decide whether complaint discloses prima facie case in relation to commission of offence alleged and for that purpose he was required to examine the complainant and witnesses if present. The validity of the complaint may be examined by examining the complainant in the Court, at the time when learned Magistrate take cognizance of offence. Since it is alleged by Respondents 2 and 3 that a false complaint has been filed by the complainant solely with a view to save her employment as a school teacher and since they are resident of Dound and are required to attend the proceedings in Chandrapur, it is expected that the learned trial Magistrate must expedite the hearing of the case and may consider grant of exemption from personal appearance in the Court by such accused attending the Court from far away places, subject of course to reasonable terms. Petition dismissed accordingly. UTTRAKHAND HIGH COURT Chandrashekhar Mishra S/o Shri Vaswa Nand Vs. State of Uttarakhand (Decided on 17.06.2011) MANU/UC/0501/2011 Dowry Death - Conviction - Challenged against thereto - Section 374 of Code of Criminal Procedure, (C.r.P.C.), 1973 - Trial Court convicted the Appellants for offences charged under Section Section 304 B, 498A of Indian Penal Code, 1860 ( IPC), and under section 3/4 of Dowry Prohibition Act, 1961 - Hence this appeal Held, Section 304B IPC provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ''dowry death''. Section 113B of Indian Evidence Act, 1872, provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty the court shall presume that such person had caused the dowry death. From the evidence of P.W.2, P.W. 3 , P.W.6 and P.W. 12 , it is sufficiently shown that the deceased was subjected to cruelty for non fulfillment of demand of dowry. . Document (Ex. A2) discloses that accused/Appellant gave in writing to the father of the deceased that in future he would not make any demand of dowry, and would not treat her with cruelty. The prosecution has successfully proved charge of offence punishable under Section 304B, 498A IPC, and one punishable under section 3/4 Dowry Prohibition Act, 1961. However, the sentence awarded by the trial court is harsh as maximum sentence of imprisonment of life has been awarded under Section 304B IPC, as it was the husband (Appellant) who had taken his wife for treatment to District Hospital, rigorous imprisonment for a period of seven years under Section 304B IPC, rigorous imprisonment for a period of two years under Section 498A IPC, and rigorous imprisonment for a period of five years under section 3/4 Dowry Prohibition Act, 1961, would have met the ends of justice. Appeal Disposed of BOMBAY HIGH COURT DIRECT TAXATION LAWS The Commissioner of Income Tax Vs. Loknete Balasaheb Desai S.S.K. Ltd. (Decided on 22.06.2011) MANU/MH/0770/2011 Dutiability of excisable goods - Section 145A(b) of the Income Tax Act, 1961 - Assessee herein are engaged in manufacturing of and sale of white sugar was held liable to excise duty on sugar manufactured but not sold and lying in closing stock under Section 145A(b) of the I T Act - CIT(A) upheld the Order of assessing officer which was subsequently upheld by ITAT - Hence this appeal - Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in holding that under Section 145A of the Income Tax Act, 1961 the excise duty element cannot be added to the value of unsold sugar lying in stock on the last day of the accounting year Held, For the purposes of this section 145A , any tax, duty, cess or fee under any law for the time being in force, shall include all such payments notwithstanding any right arising as a consequence to such payment. The dutiability of excisable goods is determined with reference to the date of manufacture and the rate of excise duty payable has to be determined with reference to the date of clearance of the goods. Therefore, though the date of manufacture is the relevant date for dutiability, the relevant date for the duty liability is the date on which the goods are cleared. In other words, in respect of excisable goods manufactured and lying in stock, the excise duty liability would get crystallised on the date of clearance of goods and not on the date of manufacture. Therefore, till the date of clearance of the excisable goods the excise duty payable on the said goods does not get crystallised and consequently the assessee cannot be said to have incurred the excise duty liability. In respect of the excisable goods lying in stock, no liability is determined as payable and consequently, there would be no question of incurring excise duty liability. In the present case, it is not in dispute that the manufactured sugar was lying in stock and the same were not cleared from the factory. Therefore, in the facts of the present case, the ITAT was justified in holding that in respect of unsold sugar lying in stock, central excise liability was not incurred and consequently the addition of excise duty made by the assessing officer to the value of the excisable goods was liable to be deleted. In the result, the question raised in this appeal is answered in the affirmative i.e. in favour of the assessee and against the revenue. Appeal Disposed of • CUSTOMS LAW MADRAS HIGH COURT Falcon Tyres Limited, represented by its Authorised Signatory, Mr. R. Venkatesh, General Manager (Projects) Vs. The Chief Commissioner of Customs (Imports), The Additional Commissioner of Customs and The Assistant Commissioner of Customs, Export Promotion Capital Goods Group (Decided on 17.06.2011) MANU/TN/2094/2011 Quashing of Proceedings - Petition filed seeking quashing of proceedings and direction to the Respondents to reexamine the machinery and the goods and release of the same Held, , the Petitioner shall pay a sum of Rs. 62,85,774/-, in respect invoice Nos. 2, 5 and 6, and a sum of Rs. 58,85,895/-, in respect of invoice Nos. 7 and 8, as customs duty. Further, the Petitioner shall furnish sufficient Bank Guarantees for a sum of Rs. 89,09,000/-, in respect of invoice Nos. 2, 5 and 6, and Rs. 64,26,287/-, in respect of invoice Nos. 7 and 8, as anti dumping duty to the satisfaction of the third Respondent. On the Petitioner complying with the above conditions, the goods in question, relating to the invoice Nos. 2, 5, 6, 7 and 8, shall be released by the Respondents. If the anti dumping duty is found to be exceeding the said Bank Guarantees furnished by the Petitioner, the said amount would also be paid by the Petitioner, as demanded by the Respondents. The adjudication proceedings relating to the issues in question, shall be completed, within a period of eight weeks from the date of receipt of a copy of this order. The writ petition is disposed of accordingly.
TRIBUNALS • SERVICE LAWS Central Administrative Tribunal (Ernakulam Bench) D. Rajan, Production Assistant, Doordharshan Kendra, Thiruvananthapuram. Vs. The Director, Doordarshan Kendra, Thiruvananthapuram and Ors. Decided on 24.06.2011. Order of Transfer - Challenged against thereto - Applicant/Production Assistant, Doordarshan Kendra, Thiruvananthpuram has challenged his transfer Orders to Doordarshan Kendra Calicut as arbitrary, discriminatory and violative of the transfer norms - Whether the Transfer Orders of the Applicant was arbitrary and in violation of the transfer norms Held, applicant had uninterrupted stay in his choice/native place, i.e Trivandrum from 1985 onwards. As per the averments of the applicant since their appointment as Production Assistants both the applicant and Respondent No.4 were working at DDK Thiruvananthapuram i.e for more than 25 years. Respondent No.4 was transferred to Calicut in 2006, but the order was kept pending due to administrative reasons. She was relieved on 27th January, 2010 and directed to report to DDK Calicut. She submitted a representation to cancel her transfer order, on the ground of the medical attention needed by her mother who is a heart patient. The representation of the 4th Respondent was examined by the 2nd Respondent who is satisfied with the compelling reasons given by Respondent No.4 and having regard to the recommendation of the Women Emplowerment Committee of Lok Sabha a sympathetic view was taken in favour of the 4th Respondent. Thus, the official Respondents cannot be faulted for acting an extreneous considerations. They have cancelled the transfer order of the 4th respondents and issued the impugned transfer order transferring the applicant to Calicut as there is no Production Assistant at DDK Calicut at present. In such circumstances the transfer order cannot be said to be in violation of the transfer norms. Further, It is well settled that the Courts or Tribunal are not appellate forum to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to places of their choice. Transfer of an employee is an incident of service. An employee has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one particular place or other. An employee is therefore, liable to be transferred to meet the administrative exigencies and to prevent any vested interest being developed, on account of longer stay in a particular station.. Ordinarily, the Courts/Tribunals would not interfere in the transfer of an employee unless there is any malafide intention alleged and proved against the departmental authorities. Hence the applicant has to report for duty at DDK Calicut. Thereafter, the Respondents are directed to consider his representation, take an appropriate decision and intimate the same to the applicant. The interim order is vacated. Application Dismissed • COMPETITION LAW Competition Commission of India MCX Stock Exchange Ltd. Vs. National Stock Exchange of India Ltd. and Dotex International Ltd. (Decided on 23.06.2011) MANU/CO/0032/2011 Anti-competitive Behaviour - Abuse of dominant Position - Stock Markets Services - Waiver of fees for brokers in the currency derivatives and subsidising activities in CD segment, open to competition - Investigation directed - What was the relevant market, in the context of Section 4 read with Section 2(r) and Section 19(5) of the Competition Act, 2002? (b) Is any of the OPs dominant in the above relevant market, in the context of Section 4 read with Section 19(4) of the Competition Act? (c) If so, is there any abuse of its dominant position in the relevant market by the above party? Held, Commission was of the view that the stock exchange provides platform or service for stock broker and traders to trade in securities and derivatives. Both, MCX-SX the Informant, and NSE, OP were providing such services for which there is a market. In this case, the stock exchange services in respect of the CD segment in India is clearly an independent and distinct relevant market. Looking at factors such as regulatory trading barriers mentioned in Section 19(6) and characteristics, consumer preferences and existence of specialised services providers as mentioned in Section 19(7), the Commission does not have to resort to arcane reasoning to delineate the relevant mark as it is an accepted principle of law that where a plain reading of the provisions suffices, there is no need to take recourse to interpretations or surmises. In the instant case, the stock exchange services provided for CD segment may be similar to those provided for other segments, but they cannot be said to be "interchangeable or substitutable".The DG had found a fairly high degree of commonality amongst members of the Informant and those of the OP. Thus, the stock exchange services in respect of CD segment in India was clearly an independent and distinct relevant market. "Dominant position" as defined under explanation (a) of Section 4 of the Competition Act, 2002 means a position of strength, enjoyed by an enterprise, in the relevant market, in India. The explosive rate of growth of the Indian economy in the new millennium encouraged some new players to start stock exchanges in limited segments. The CD segment market was the latest market opened by the regulators but by then, NSE had acquired an overall position of strength in the capital markets. Thus, it would be wrong to say that NSE does not enjoy power and that has enabled them to resort to zero pricing and sustain the same. Furthermore, the zero pricing policy is unfair as the Informant and the OP were not on the same footing in terms of resources directly available, spectrum and scale of operation, nationwide presence, length of existence etc. To sum up NSE had abused its dominant position in terms of Section 4(2)(a)(ii) and 4(2)(e) of the Competition Act as the intention of NSE was to acquire a dominant position in the CD segment by cross subsidising this segment of business from the other segments where it enjoyed virtual monopoly. It also camouflaged its intentions by not maintaining separate accounts for the CD segments. NSE created a façade of the nascency of market for not charging any fees on account of transactions in the CD segment Thus, NSE was directed to cease and desist from unfair pricing, exclusionary conduct imposed penalty accordingly. (DISSENTING OPINION) Stock market services - Zero pricing policy - Entry barriers contrary to the Competition Act, 2002 - Percentage of market share of OP fell on new entrants stepping in - No major regulatory barriers, as evident from the entry of MCX-SX and later on USE - Alleged regulatory barrier of minimum net-worth requirements were for prudential purposes - Held, Even though the majority found violation of Sections 4(2)(a)(ii), 4(2)(b)(i) and (ii), 4(2)(c), 4(2)(d) and 4(2)(e) of Competition Act, 2002 (the Act), but there were two members who had a dissenting opinion and held that considering the market shares of the three competitors, all of them seem to have the necessary size and resources for effective competition in the market and the alleged regulatory barrier of minimum net-worth requirements were for prudential purposes, which have to be complied. Other stated barriers like minimum number of members and infrastructure cost cannot be termed as entry barriers, as these have the intention of ensuring a minimum trading base, without which adequate liquidity would not come through and the very purpose of starting the exchange would be defeated. Here, NSE had started with a market of 100 per cent share of CD segment but until entry of MCX-SX, NSE's market share had come down to 33.17 per cent. This fact itself established beyond doubt, NSE's inability to influence the market or its competitors in its favour. Moreover, with regard to the allegation of unfair/predatory pricing by NSE, it is evident that the zero price set by NSE initially in the CD segment was a part of a sound business strategy as later MCX-SX and USE, have also entered the market subsequently with zero pricing. Therefore, it would be naive to argue that their business models did not factor in the hope or expectation that existing competitor(s) would start charging so that they would not suffer losses after entry. Therefore, no violation of provisions of Section 4 of the Competition Act, 2002 has been established against National Stock Exchange(NSE). |
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