SUPREME COURT

• CRIMINAL

Md. Shahabuddin v. State of Bihar and Ors. (Decided on 25.03.2010) MANU/SC/0203/2010

Dalveer Bhandari, J.

Criminal - Shifting of Venue of Trial - Section 465 of Code of Criminal Procedure, 1973 - Whether the notification empowering a Sessions Court to hold trial inside the jail is outside the purview of Section 465 of the Code ?

Held, impugned notification within the meaning of 'other proceedings before or during the trial'. Also, 'other proceedings before and during trial' would include the notification issued by the High Court and given effect by the State Government by virtue of the constitutional provisions in Chapter-VI of the Constitution. Hence, notification in the nature of a sanction to prosecute the Appellant within the Jail premises in the Courts of Sessions Division and the Judicial Magistrate. Notification empowering a Sessions Court to hold trial inside the jail within the words `irregularities in any sanction for the prosecution' and thus not outside the purview of Section 465 of the Code. Appeal dismissed.

Criminal - Right to Trial in open Court - Section 327 of Code of Criminal Procedure 1973, (Cr.P.C.) - Whether the decision of the High Court to hold trial of the Appellant in Jail violative of Section 327 of the Cr.P.C. ?

Held, Right to public trial recognised under Section 327 of the Code. Not to be inferred that there cannot be any exception to the universal rule. In a case of extraordinary nature, the universal rule of open trial may not be adhered to. In the present case, Appellant involved in more than 40 criminal cases. Serious danger existed in producing the Appellant in open Court. No prejudice caused to the Appellant as all his 38 counsel, public and press people permitted to remain present during the Court proceedings. No presumption that a trial in prison not an open trial. Jail an open Court as long as no restrictions of free and fair trial compromised with. Appeal dismissed.

Mukundakam Sharma, J.

Criminal - Exercise of Administrative Powers - Section 9(6) of Code of Criminal Procedure, 1973 - Holding of Trial at one Court and constituting and establishing special Court for trial of other sessions cases - Notifications issued in relation thereto - Legality and Validity under question - Applicability of Rule of audi alteram partem

Held, Section 9(6) comprises of two parts, one that confers power on the High Court and the second endows power on the Court of Sessions. Second part makes it mandatory to observe a special procedure contemplating compliance of the rule of audi alteram partem, whereas first part is silent on any such compliance. In the present case, the venue of trial was neither shifted due to inconvenience to the parties or witnesses nor for a particular case, but for the entire class of cases pending against the Appellant. Power to change the venue of the trial of cases in the instant case was exercisable by the High Court as the present case does not fall under the ambit of first part of Section 9(6) - Compliance with the rule audi alteram partem thus not necessary. Appeal dismissed.

Criminal - Shifting venue of Trial - Whether shift as in the present case means "transfer" as contemplated in Section 407 of the Code of Criminal Procedure, 1973 ?

Held, Section 407 of the Code deals with the power of the High Court to "transfer" cases and appeals. Transfer includes removing a case or class of cases from the jurisdiction of the Court where it/they is/are pending trial, and to put it/them under the jurisdiction of another Court for adjudication. Impugned notification simply notified the premises of District Jail, to be the place of sitting for holding the trial of cases pending against the Appellant and it doesn't affect or abridge the jurisdiction of the Court of Sessions to try those cases. There was just a shift simpliciter in the venue of the trial. Thus, the High Court cannot be said to have transferred the cases pending against the Appellant. Hence, the present case not a case of "transfer" to which the provisions of Section 407 are attracted. Appeal dismissed.

Criminal - Conduction of Trial inside the jail premises - Violation of Articles 14 and 21 of the Constitution of India,1950 and Section 327 of Code of Criminal Procedure, 1973 (Cr.P.C.)?

Whether a trial conducted inside the jail premises violative of Section 327 of Cr.P.C. as well as Articles 14 and 21 of the Constitution. Held, a classification may be reasonable only if a single individual treated as a class by himself. Special circumstances or reasons applicable to him alone not applicable to others. Trial inside a jail does not stand vitiated solely because it is conducted inside the jail premises. Valid reasons which necessitated the shifting of the venue of the trial of cases pending against the Appellant. No special procedure prescribed and the cases to be conducted and disposed of in accordance with procedures as prescribed under the Cr.P.C. In the present case,no prejudice caused to the Appellant while shifting the cases to the Special Courts situated inside the premises of District Jail. No violation either of Section 327 Cr.P.C. or of Articles 14 and 21 of the Constitution. Appeal dismissed.

• CONSTITUTION

Zakir Hussain Primary Teachers Education College and Anr. v. State of Bihar and Ors. (Decided on 16.03.2010) MANU/SC/0177/2010

Constitution - Recognition to Institution? Petitioner Institution a Primary Teachers Training college? Recognition granted earlier revoked and result of examination withheld? Writ petition dismissed on the ground of delay and laches? Writ appeal a dismissed by Division Bench? Hence , present appeal? Whether High Court justified in denying relief on the ground of delay and laches?

Held, Board has did not hold examination for the last 2 decades? Students not to be punished for delay on part of Board? College allowed to approach Court only when examinations announced? Dismissal of writ petition on the ground of delay not justified? Impugned judgment set aside? Division Bench requested to hear the matter on merits.

• SERVICE

State of West Bengal and Anr. v. West Bengal Minimum Wages Inspectors Association and Ors. (Decided on 15.03.2010) MANU/SC/0165/2010

Service - Pay Scale - Parity - Claim of - West Bengal Services Revision of Pay and Allowances Rules, 1981 - Respondent holding post of Inspector Agricultural Minimum Wages (AMW), claimed parity in pay scale with posts of Inspector (Cooperative Societies), Extension Officers (Panchayat) and KGO-JLRO (now Revenue Officers) - Claim of Petitioner rejected by pay review committee - However, relief granted by Division Bench - Hence, present appeal -  Whether Division Bench was justified in granting Petitioners same pay scale from respective dates as was granted to their counterparts under RPA 1981?

Held, Parity claim not on basis of equal pay for equal work, but on basis of previous equal pay ?Evaluation of duties and responsibilities of different posts and determination of Pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies? Granting parity in pay scale depends upon comparative job evaluation and equation of posts? Principle "equal pay for equal work" not a fundamental right but a constitutional goal? Dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment etc.? Comparison merely based on designation of posts misconceived? Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of Government is patently irrational, unjust and prejudicial to any particular section of employees? Burden to prove disparity is on employees claiming parity? Mere fact that at an earlier point of time, two posts were carrying same pay scale does not mean that after implementation of revision in pay scales, they should necessarily have same revised pay scale? Impugned order set aside? Appeal allowed.

HIGH COURT

• CORPORATE LAWS

Kimsuk Krishna Sinha v. Securities and Exchange Board of India and Others (Decided on 09.04.2010)

Alleged Misstatement in Red Herring Prospectus by DLF - Statutory duty of SEBI - Merely because the public issue was closed, whether SEBI can presume to be relieved of its statutory duty to conduct an enquiry into the Complaint and into the veracity of the statements made in the prospectus.

There are enough powers vested in it under the SEBI Act for this purpose. Illustratively this would include Sections 11 and 11-B of the SEBI Act. The SEBI Act expects SEBI to act as an institution accountable to the investor public and be both accessible and responsive to complaints. SEBI can write to the Central Government, if so required, to exercise its powers under Section 247 of the Companies Act to carry out investigations.

In the instant case, the transfer of shares to and by the concerned entities on the same day, which has the effect of relieving the DLF LTD. of any connection with SEPL, is a matter that requires investigation. Accordingly, SEBI directed to undertake an investigation into the complaints made.

• SERVICE LAWS

Om Prakash and Others v. Union of India and Others (Decided on 09.04.2010)

Whether there is Discrimination against vis-à-vis the employees of the Government of India in the matter of Payment of Gratuity and claim that the ordinance amending the Gratuity Act w.e.f. 24th September 1997 instead of w.e.f. 1st April, 1995 (w.e.f. which date enhanced gratuity became payable under the CCS (Pension) Rules to the Central government employees to be discriminatory and violative of Article 14 of the Constitution of India - Determination thereof

As held by the Hon'ble Supreme Court in Hindustan Antibiotics Ltd. Vs. The Workmen that though in fixing the pay structure of the public corporations, due regard should be had to the pay structure in the civil services, the same was only advisory in nature and did not mean that the wage structure of the public corporations should be of the same pattern obtaining in departments of the Government. It was further held that the service conditions of employees in public sector undertakings are not analogous to those of the Government employees; there is no security of service; the fundamental rules do not apply to them; there is no constitutional protection; there is no pension; they are covered by service standing orders; their service conditions are more similar to those of employees in the private sector than those in Government departments. In such circumstances, the question of violation of Article 14 of the Constitution of India does not arise as that arises only if the persons are similarly placed. Article 14 does not apply in a vacuum. The equality clause contained in Article 14 will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia.

• CRIMINAL

Kishor v. Sou. Shalini and Ors. (Decided on 30.03.2010) MANU/MH/0290/2010

Criminal - Economic abuse as Domestic Violence - Validity of - Sections3, 12, 19, 20 and 27 Protection of Women from Domestic Violence Act, 2005 - Complaint filed by Respondents after 15 years Respondents on ground of cruelty and desertion since last 15 years by Petitioner and thus claimed enhanced maintenance as compensation for economic abuse - Application for dismissal of the complaint filed by Petitioner dismissed and the Court directed the Petitioner to pay enhanced maintenance along with house rent to Respondents - Hence, present petition - Whether the present petition for enhance interim is maintainable under the Domestic Violence Act, 2005?

Held, there had been no contact, communication or relationship between Petitioner and Respondents for the last 15 years. Existence of Domestic Violence cannot be presumed after a big gap of 15 years the Act of 2005 having been brought into force. Respondent Nos. 1 and 2 approached the Court on the grounds of economic abuse under Section3 of the Act. Explanation-II of Section 3 of the Act provides that 'overall facts and circumstances of the case shall be taken into consideration' to find out the deserving and undeserving cases, which will be filed under the provisions of the said Act. Respondents have abruptly after a long gap of 15 years alleged domestic violence against the Petitioner. No proximity shown anywhere nearer to the date of filing the complaint or any deprivation, prohibition or restriction upon demand being made before filing the complaint. Complaint not maintainable under Section27 of the Act of 2005. Recourse to remedies under other laws open for Respondents. Petition allowed.

• ELECTION

Prashant Prabhakar More, Nashik Municipal Corporation v. State of Maharashtra through its Principal Secretary, Urban Development Dept. and Ors. (Decided on 29.03.2010) MANU/MH/0283/2010

Election - Standing Committee - Expiration of term - Sections 20, 20(3), 20(4) and 31 of Bombay Provincial Municipal Corporations Act,1949 - Whether the term of one ­half members (eight in numbers) of the present Standing Committee of the Nashik Municipal Corporation has already expired on 1st March, 2010?

Held, Constitution of the Standing Committee, term will relate back to the date of first meeting of the Corporation after general elections. Fact that the Standing Committee not constituted would not extend the term of existing office members beyond the term specified in Section 20(3). Sub­section (3) read with sub­section (2) of Section 20, makes it mandatory that the computation of commencement of the term of office of the Standing Committee will have to be reckoned from the date of the first meeting of the Corporation after the general elections. No other interpretation possible. Petitioner got elected as a member of the Standing Committee in June 2009 but first meeting after general elections of the Corporation held on 15thMarch,2007. Hence, term of 8 members of the existing Standing Committee of the Respondent ­Corporation, expired on 1st March 2010. In present case, the period commenced on or from 15th March, 2007 for the purpose of computing the term of office of the members of the present Standing Committee, even though, the elections were held on 12thJune, 2007. Petition allowed.

• CUSTOMS

Appollo Paper Mills Ltd. v. Central Warehousing Corporation and Ors. (Decided on 26.02.2010) MANU/DE/0518/2010

Customs - Writ Petition - Demand- Demurrage charges - Consignment was stored at the warehouse of Respondent-Delay in removal of consignment was because of delay in assessment by Customs Authority- Hence, petitioner sort for waiver the warehouse charges in terms of Clause 59 of the General Terms and Conditions of Storage- Respondent declined to waive the warehouse charges- Impugned Order of Bombay High Court directed that in the event of respondent declining to waive the warehouse charges, respondent shall compute the warehousing charges payable after taking into consideration the detention certificate to be issued by Customs Authorities- There was a delay in sending of letters with the computed amounts by the Respondent - Whether aforementioned letters can be quashed and Respondent directed to release consignment of petitioner upon payment of any legitimate amount?

Held, Bombay High Court has considered the issues concerning liability of the respective parties and its Judgment is final and binding on the parties. Respondent's inaction has resulted in severely prejudicing not petitioner but itself also. Calculation as submitted by petitioner of the storage charges due is consistent with Impugned Judgment of Bombay High Court. Amounts deposited pursuant to impugned Interim Order to be refunded after deducting the amount due to respondent as calculated by petitioner. Writ Petition allowed.

Rakesh Dhir v. Union of India and Ors. (Decided on 15.03.2010) MANU/MH/0232/2010

Customs-Principles of Natural justice-Amendment of consignee's name in IGM-Section 30 of Chapter VI of the Customs Act-Petitioner applied to Customs Authorities to seek Amendment to the IGM so as to substitute his name as consignee in place of notified parties-Said application was rejected clarifying that no request for amendment of consignee's name in the IGM shall be entertained if consignee first named has already filed the bill of entry and has neither withdrawn the same nor given NOC for the amendment in terms of Public Notice No. 2/1010

Held, proper Authority notwithstanding said public notice is required to consider the prayer of the petitioner on its own merits under Sub-section 3 of Section 30 of the Customs Act, by a reasoned order hearing all parties following principles of Natural justice. Whenever there is a failure to exercise discretion under discretionary power conferred by the statute, then, it is permissible for the Court to take note of such inaction and give a direction to consider the case, ratio of Judgment in Indian Railway Construction Co. Ltd. v. Ajay Kumar. Hence, proper officer has failed to exercise statutory discretion on well recognised judicial parameters. Impugned Order refusing to grant Amendment to the IGM set aside. Matter restored back to the Deputy Commissioner of Customs (Import Noting) with direction to consider the same afresh.

TRIBUNAL

• DIRECT TAXATION

Income-tax Officer v. Sikka International Freight Services Pvt. Ltd (ITAT- Delhi) (Decided on 18-02-2010) MANU/ID/0071/2010

Direct taxation - Chargeability of Income - Credit of TDS - Assessee, clearing and forwarding agent - Filed income tax return and was accepted under Section 143(1)(a)- Due to some discrepancy in total gross receipts as per TDS certificate and that shown in profit and loss account, ordered reassessment - Whether addition made only because of the difference between the receipts as per TDS certificate and the receipts as per profit and loss account was correct? - Sections 147, 199, Income Tax act, 1961.

When income is assessed as business income, the same is to be on the basis of method of accounting regularly employed by the assessee. The tax is required to be deducted at source at the time of credit to the account of payee or at the time of actual payment thereof. Thus the deduction of tax at source does not determine the year of taxability of the receipt stated in the TDS certificate. At best if corresponding income is not taxable in a particular year, the corresponding credit for tax deducted may not be granted in view of Section 199 but reverse is not true. Merely because credit was claimed for tax deducted at source, it does not mean that the corresponding income is chargeable to tax. Since the income is chargeable to tax on the basis of method of accounting regularly followed by the assessee and in respect of which no discrepancy has been noticed by the Assessing Officer, the addition was rightly deleted.