SUPREME COURT

• CRIMINAL LAWS

Ongole Ravikanth vs. State of A.P. (Decided on 17.06.2009) MANU/SC/1097/2009

Dying declaration - Conviction based thereon under challenge - High Court vide impugned judgment set aside and altered conviction under section 324 IPC to that under Section 304 part I - Trial Court earlier based on evidence available on record held that prosecution established its case beyond doubt but the Appellant had no intention to kill his wife and accordingly found the Appellant guilty under Section 324 IPC

The deceased in her dying declaration stated in clear and categorical terms that the Appellant used to quarrel with her whenever she questioned him about his illegal and immoral activities of having illicit intimacy with some women. It is well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. It has been repeatedly held by this Court that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In the instant case statement made by the deceased was on her own volition. It was voluntarily made without any coercion or tutoring of anyone. The deceased in clear and categorical terms stated that she poured kerosene on herself and it was the appellant who lit the match stick resulting in fire and causing 60% burns which ultimately led to her death. The Appellant instead of preventing the deceased pouring kerosene upon herself lit the match stick resulting in fire and causing burns. The Appellant knew very well that the body of the deceased was drenched with kerosene yet he indulged in the cruel act of lighting the match stick. The High Court took a very lenient view in convicting the Appellant for the offence punishable under Section 304 Part I IPC. Conviction of the Appellant for the offence punishable under Section 304 Part I of IPC and the sentence awarded by the High Court confirmed. Appeal dismissed.

Union of India vs. Shah Alam (Decided on 11.06.2009) MANU/SC/1065/2009

Conviction under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Respondents were held guilty of illegally possessing 100 grams of heroin each - They were acquitted of the other charge under Section 8 read with Section 29 of the Act - High Court in appeal set aside the judgment and acquitted the Respondents of the charge under Section 8/21 of the Act

Alleged recovery of heroin from the Respondents held to be in complete violation of the provisions of Section 50 of the Act. Apart from this the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. Further, a formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it was not that they were simply not produced before the court. View taken by High Court held as correct.

• SERVICE LAWS

Santosh Kumar Tripathi and Ors vs. U.P. Power Corporation and Ors (Decided on 15.06.2009) MANU/SC/1090/2009

Claim of Absorption on conclusion of apprenticeship - Appellants who had done a term of apprenticeship in different trades with the Uttar Pradesh State Electricity Board claimed absorption as Junior Engineers and on different posts of Operating Staff

High Court took the view that the recruitment Regulations provided for a written examination and hence, it was a condition precedent for all candidates, apprentices not excluded, to appear in the examination and to qualify for appointment. Apart from the aforesaid provision the High Court also took into consideration a vast amount of other materials for coming to its conclusion. High Court held to have taken the correct view of the matter that does not call for any interference. Appeal dismissed accordingly.

HIGH COURT

• SERVICE LAWS

ALLAHABAD HIGH COURT

Karunakar Khare vs. State of UP (Decided on 08.06.2009) MANU/UP/0109/2009

Order of Transfer - Challenge thereto - Petitioner aggrieved by the order submitted the impugned order as having been passed on account of mala fide in violation of Clause 3 of the Government Order dated 24th May, 2007 providing for transfer policy of the employees of State Government

Submissions held to be thoroughly misconceived. In order to entertain a plea of mala fide, persons against whom allegation of mala fide is levelled, should be impleaded eo nomine and in absence thereof, the Court should not entertain the plea of mala fide. In the present case, no one was impleaded eo nomine and, therefore, the plea of mala fide can not be entertained. On the second issue, undisputedly the power of transfer in the State of U.P. in respect to the Government service is governed by statutory rules i.e. Chapter XXXIV of the Police Regulations framed under the Police Act, 1861. The executive order, which the Petitioner had proposed to rely, could not restrict the said statutory rules. Moreover, it was also doubtful as to whether the said instruction was applicable to the police officials who are governed by the statutory rules framed under the Police Act, 1861. Appeal dismissed.

Mulayam Singh and Ors vs. State of UP (Decided on 10.06.2009) MANU/UP/0110/2009

Petitioners engaged as Safai Karmis in the Panchayat Raj Department, Firozabad have assailed various orders of their termination - Further challenged the directions contained in the Government order and similar Government order directing the Divisional Commissioner to cancel all such appointments made on the post of Safai Karmis in the concerned district

Petitioners to be allowed to continue in the service as Safai Karmis. There was no infirmity and illegality in the selections, the candidates selected should be issued letters of appointment and should immediately be permitted to join their duties. The petitioners who have joined the services should also be paid their salary including their arrears of salary. Respondents directed to issue appointment letters in pursuance of the select list prepared and published in furtherance of the earlier advertisement. Those who had assumed charge to be paid salary from the date of assuming charge. The rest of the selected candidates to be paid salary with effect from the date when they assume charge.

• CRIMINAL LAWS

Chandigarh Administration vs. Nemo (Decided on 09.06.2009) MANU/PH/0290/2009

PUNJAB AND HARYANA HIGH COURT

Physical and mental abuse of a hapless girl in a Government-run Institute - Medical termination of the pregnancy of a mentally retarded girl - Permission thereof sought by the Chandigarh Administration

Report of the Expert Body along with the expression of views by the victim directed to be placed on later datefor determining as to whether or not the pregnancy of the victim should be medically terminated alongwith other directions to be observed and followed by such institutes.

• COMPANY

CALCUTTA HIGH COURT

Star Textiles and Industries Ltd. vs. Olive Tea Plantations P. Ltd. (No. 2) (vice versa) (Decided on 16.03.2009) MANU/WB/0076/2009

Petition filed by Appellant to wind up Respondent-company on ground of inability of Respondent to repay debts - Respondent defended claim of Appellant-Petitioner on ground of misuse and fraud of its finances by fraudulent manager managing various companies including Appellant - Trial Court relegated Appellant to file civil suit for entire amount claimed excepting certain amount and disallowed the winding up petition - Whether Trial Court was justified in disallowing the winding up petition

Trial Court rightly observed that a creditor is entitled to an order of winding up under Section 433(e) and 434(1)(a) of the Companies Act, 1956, on establishing that there is a debt owing and the company is unable or has neglected to pay the same. Upon being satisfied that there is a debt owing, the Court is entitled to investigate whether the dispute put forward is bona fide or it has been manufactured in order to delay and defeat the realization of Petitioner's dues. The pre-condition for examination of reasonableness of the cause preferred by the company is that the Appellant-Petitioner has to establish a clear debt owed by the company. Further, a company's defence can be ignored if it falls within the realm of "moonshine" or if defence is sham and has been pleaded only to defeat the claim put forward by the Appellant-Petitioner. In the present case, the Appellant-Petitioner has miserably failed to show that the amounts claimed had actually been given as loan to the company. Further, defence put up by Respondent not far fetched to be discarded as sham, bogus or moonshine. Trial Court rightly disallowed the winding up petition.

• MEDIA AND COMMUNICATION

MADRAS HIGH COURT

New Galaxy Netcom represented by its Proprietor A.N. Sathyanarayanan vs. S.C.V. represented by its Authorised Signatory J. Rajesh (Decided on 15.05.2009) MANU/TN/1098/2009

Dispute between franchisee and licensee - Whether Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has jurisdiction to decide a dispute between a franchisee and licensee

Sections 15 and 27 read together with Section 14 of Act of 1997 states that jurisdiction of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) confined to disputes only between licensor and licensee or between two or more service providers and between service provider and group of consumers. Hence, if there is a dispute between the licensee or a service provider under the provisions of Telecom Regulatory Authority of India Act, 1997(TRAI Act, 1997) and franchisee who is not a licensee or service provider or a consumer under the TRAI Act, 1997 then TDSAT will not have jurisdiction to decide the dispute.

• PROPERTY LAWS

Shri George L. Fernandes vs. State of Goa (Decided on 23.06.2009) MANU/MH/0460/2009

Challenge to the propriety and legality of the notifications dated 18.04.2008 and 22.01.2009 issued under Sections 4 and 6 respectively of the Land Acquisition Act, 1894 - Notification related to construction of Bridge across the river Sal along with approach road at Varca passing through Survey No. 45/3 at Village Varca, Salcete, Goa arises by way of the present petition

As per the plan annexed to the report of Engineer and Valuer, it was clear that much higher cost of the acquisition of large tract of land as compared to the small tract of land to establish connection with the Varca-Orlim road would be required to be incurred if the old proposal for construction of Bridge as proposed by the Petitioner; this issue was nowhere tabled or addressed to before any Forum either through any objection or otherwise shrewdly by the petitioner. Construction of a bridge connecting two villages was a public purpose and no malafides was found involved in it. Cost of the proposed bridge as discussed above was not relevant much less germane to the decision making process under the said Act. Objections raised by the Petitioner was duly considered by the L.A.O. and the State. No irregularities in the procedure for acquisition nor any case of malafide warranting judicial interference in the acquisition proceedings. The writ petition accordingly dismissed.