SUPREME COURT

• CRIMINAL

Lalu Prasad Yadav and Anr.v.State of Bihar and Anr. (Vice-versa) (Decided on 01.04.2010) MANU/SC/0214/2010 

Criminal - Competence of State to file an Appeal - Scope of - Section 378, 378(1) and 378(2) of Code of Criminal Procedure, 1973 - Whether the State Government has competence to file an appeal from the judgment passed by Special Judge, CBI acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI)?

Held, Section 378 of Code provides for the competence of the State Government to file an appeal from the judgment and order of acquittal. Section 378 Sub-section (1), opens with the words - "save as otherwise provided in Sub-section (2)"- 378 (2) refers to two class of cases, namely, (i) those cases where the offence has been investigated by the Delhi Special Police Establishment constituted under 1946 Act and (ii) those cases where the offence has been investigated by any other agency empowered to make investigation into an offence under any Central Act other than 1973 Code. Thus, Section 378 permits appeal from an order of acquittal by the State Government in every case, except two class of cases mentioned in Sub-section (2) of Section 378. Full effect has to be given to the exception (clause) articulated in the opening words. In the present case, the State Government has no competence to file an appeal from the judgment passed by Special Judge, CBI acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI). Appeals allowed.

M.C. Ali and Anr. v. State of Kerala (Decided on 13.04.2010) (MANU/SC/0247/2010)

Criminal - Murder - Conviction pursuant to Acquittal - Challenge against thereto - Section 378 of Criminal Procedure Code, 1973 - Appellants convicted for offences punishable under Sections 302, 307, 149 and 34 of Indian Penal Code, 1860 (IPC) and awarded life sentence by High Court by reversing judgment of acquittal passed by Trial Court -  Whether High Court justified in reversing well considered judgment of acquittal passed by Trial Court?

Held, Trial Court disbelieved conduct of prosecution witnesses after having notice element of lack of normal instinct in their behavior. No independent witness corroborated evidence of interested witnesses. Trial Court, on independent assessment of evidence came to the conclusion that there was no evidence to connect the accused with crime. There was clear cut enmity between PW5 and his family on one side and accused party on other side. It was a religious dispute which led to high tension. There is absolutely no explanation with regard to injuries suffered by accused. All witnesses being interested witnesses, their evidence could not be believed in absence of independent corroboration. Two views being reasonably possible High Court ought not to have interfered with verdict of acquittal recorded by Trial Court. Impugned judgment set aside. Appeal allowed.

Criminal - Appreciation of evidence - Whether relationship of the witnesses with the accused affect the credibility of the witness?

Held, Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person leaving a way for real accused to escape. Appeal Allowed.

• EXCISE

Bata India Ltd. v. Commissioner of Central Excise, New Delhi (Decided on 12.04.2010) (MANU/SC/0243/2010)

Excise - Dutiability - Marketability - Burden of proof - Section 2(d) of the Central Excise 1944 (the Act) - Assessee, a manufacturer of footwear, manufactured double textured fabric, a rubberised, used as upper material in the manufacture of foot wear - According to the Revenue, double textured fabric marketable and hence, dutiable - Commissioner confirmed the demand and imposed penalty, which was upheld by the Tribunal - Whether textured fabric assembly produced in the Assessee's factory and captively consumed can be termed as 'goods'?

Held, impugned product is used as an intermediate product, which is used as a component for the final product. Burden to show that the impugned product is marketed or capable of being bought or sold in the market so as to attract duty is entirely on the Revenue. Assessee has produced sufficient materials to establish that the material used by the Assessee is not marketable and has no commercial identity. Further, vide Notification No. 143/94-Central Excise dated 7th December, 1994 impugned goods stands exempted if captively used for the manufacture of exempted footwear. Impugned Order set aside. Appeal allowed.

• CONSTITUTION

State of Jharkhand & Ors. Versus M/s. Misrilall Jain & Sons & Anr. Etc. (Decided on 13.04.2010) MANU/SC/0248/2010

Constitution - Resolution treating entire land for the purposes of determination of surface rent as the lease for commercial purposes - Competence of State to issue Resolution - Whether the State Government Competent to issue Resolution increasing collection of surface rent on the area of mining leases at par with the land under commercial?

Held, no challenge as to legislative competence of the Parliament to enact 1957 Act or to the competence of the Central Government to make 1960 Rules or to the competence of the State Government to make 2004 Rules. Resolution dated 17th June, 2005 issued by the State Government as an executive order. High Court not clear about the said legislation. Observation by Division Bench that State Government not competent to issue resolution of surface rent carried the impression as if resolution was issued by State Legislature. Aspects germane for consideration overlooked by High Court and irrelevant aspects taken into consideration. Not necessary to go into merits and diverse contentions. Controversy relating to resolution to be considered afresh By High Court. Appeals Allowed.

• ELECTRICITY

Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and Ors. (Decided on 15.04.2010) MANU/SC/0252/2010

Electricity - Condonation of delay - Sections 5 and 29(2) of Limitation Act, 1963 and Section 125 of Electricity Act, 2003 - Whether Section 5 of the Limitation Act, 1963 can be invoked by this Court for allowing the aggrieved person to file an appeal under Section 125 of the Electricity Act, 2003 after more than 120 days from the date of communication of the decision or order of the Appellate Tribunal for Electricity?

Held, Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, then such period prescribed by special or local law were the period prescribed by the Schedule. The expression `within a further period of not exceeding 60 days' in Proviso to Section 125 of Electricity Act makes it clear that the outer limit for filing an appeal is 120 days. No provision in the Act under which this Court can entertain an appeal filed against the decision or Order of the Tribunal filed after more than 120 days. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation providing special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. Thus, Section 5of the Limitation Act cannot be invoked by the present Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Appeal dismissed.

Electricity - Date of Communication of decision - Section 125 of Electricity Act, 2003 and Rule 94(2) of Electricity (Procedure, Form, Fee and Record of Proceedings) Rules, 2007 - What is the date of communication of the decision or Order of the Tribunal for the purpose of Section 125 of the Electricity Act and whether the Appellant is communicated in the present case?

Held, The word `communication' has not been defined in the Act and the Rules and thus it has to be interpreted by applying the rule of contextual interpretation and the relevant provisions. Rule 94(2) provides that once the factum of pronouncement of Order by the Tribunal is made known to the parties and they are given opportunity to obtain a copy thereof through e-mail etc., the Order will be deemed to have been communicated to the parties and the period of 60 days specified in the main part of Section 125 will commence from that date. In the present case, the date on which the impugned order was pronounced by the Tribunal, the factum of pronouncement was conveyed to the parties including the Appellant. The preparation of appeal is a clinching evidence of the fact that the Appellant had not only become aware of the order of the Tribunal, but had obtained copy thereof. No tangible explanation was offered by Appellant for not filing Appeal for more than three and half months after its preparation. Thus, appeal cannot be entertained and hence is dismissed.

HIGH COURT

• CRIMINAL

MADRAS HIGH COURT

M. Chandran v. Inspector of Police, (Law and Order) (Decided on 01.04.2010) MANU/TN/0332/2010

Criminal - Sections 36, 41, 154, 155, 156, 190, 200 and 482 of Criminal Procedure Code - Respondent has refused to register a complaint and thereafter the case was filed in Court - Respondent did not proceed in the case despite there being Court directions to do so - Contempt petition filed - However, Respondent made an entry in the file of complaint but no effective action was taken - Consequently, the complaint was withdrawn and present writ was filed - Whether a writ petition for direction to the police to register the complaint is maintainable under Article 226 of the Constitution of India?

Held, petitioner cannot approach this Court by filing this writ petition since the Hon'ble Apex Court has taken the view that the remedy of the petitioner does not lie before this Court in filing the writ petition under Article 226 of the Constitution or to exercise the power of this Court under Article 227 of the Constitution or under Section 482 Cr.P.C. The proposition depends upon the facts and circumstances of each case. In (2008)2 MLJ (Crl.)796, this Court has held that the rule enunciated by the Hon'ble Supreme Court is not without exception and that in appropriate cases, in order to prevent miscarriage of justice, directions can be issued. SC has held that instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C., the petitioner can approach a Magistrate (Criminal court) and he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. But, in the instant case, the petitioner was constrained to wait for more than ten months in registering the complaint. Under such circumstances, it cannot be construed that the petitioner has approached this Court immediately on filing the complaint, since the investigation has not yet been done. If the petitioner is directed to avail the alternative remedies, he may not get justice at this length of time. Moreover, I am of the opinion case in accordance with law as expeditiously as possible. Writ accordingly disposed of.

• CONSTITUTION

BOMBAY HIGH COURT

Asha Seva Bhavi Sanstha v. State of Maharashtra (Decided on 08.04.2010) MANU/MH/0318/2010

Constitution - Starting a primary, secondary or higher secondary school on "permanent no grant basis" in "Marathi medium" - Bombay Primary Education Rules, 1949 - Proposal submitted pursuant to Government Circular - Government issued Impugned Resolution dated 20th July, 2009 to the effect that proposals submitted to be treated as cancelled or rejected on the ground that permission cannot be granted until a comprehensive plan (perspective plan/ master plan) is prepared with the assistance of experts?

Held, impugned decision of the State illegal and unconstitutional being discriminatory and arbitrary and also suffers from the vice of non-application of mind. Preparation of a perspective plan and School Development Plan or for that matter, non inclusion of the locality in the said plans where the proposed school is to be established by the private management on permanent no grant basis, can be no ground to disallow the private management. Approach of the State to take a blanket decision and cancel or reject all the pending proposals, by no standards can stand the test of judicial scrutiny. Perspective plan or School Development Plan would be only a barometer of the requirement of educational institutions to be "funded by the State" at the macro level as well as micro level across the State and cannot be a condition precedent. Petitions allowed.

Right to Live vis-à-vis Right to Education -Articles 21 and 21A of the Constitution of India, 1950

Held, there can be no debate on the issue that right to live, takes within its fold right to education and more so quality education - As per recently introduced Article 21A, the State is duty bound to provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. To effectuate the constitutional obligation of the State, the Right of Children to Free and Compulsory Education Act, 2009 has been enacted and effective from 1st April, 2010. Impugned decision of the State is in anterior point of time than the coming into force of this Act. Now, since the said Act is already in place, all concerned would be obliged to give effect to the provisions thereof to examine the issue regarding establishing a school or of recognition thereof on and from 1st April, 2010. In accordance to the scheme of the constitutional provisions and of the Act of 2009, the primary obligation is of the State to provide free and compulsory education to children between the age of 6 to 14 years, in particular to children likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges or expenses therefore. However, it does not mean that the fundamental right guaranteed to the citizens of India under Article 19(1)(g) to establish an educational institution would cease to operate. It is an activity to be undertaken by the private institutions, which will be supplemental to the primary obligation of the State in that behalf. State can only regulate the activities of the private institutions by imposing reasonable restrictions and in the interests of the general public.

Constitution - Right to establish educational institution

Whether the right to establish available "only to" Public Charitable Trusts?

Held, provisions postulate that permission to start new secondary / higher secondary schools by the management will be recommended on fulfillment of conditions amongst others, that the management shall be registered under the Societies Registration Act, 1860 or under Bombay Public Trusts Act, 1950. In the present case, the Petitioners duly registered under the Societies Registration Act as well as Bombay Public Trusts Act, 1950 as public charitable trusts. Right to establish an educational institution, by now, has been recognized as a fundamental right within the meaning of Article 19 (1)(g) of the Constitution, which is guaranteed to "every citizen" of India. Thus, this right cannot be limited to only public charitable trusts, especially when the private management intends to establish the same on permanent no grant basis without taking any aid from the State Government whatsoever. It would be a different matter if the proposal for establishment of educational institution by the private management is on grant in aid basis, which institution would be inevitably funded by the Government out of public exchequer. Incase of such institution, the Government may provide for condition that only public charitable trusts would be entitled to establish educational institutions on grant in aid basis.

Obligations to be fulfilled?

Held, unaided schools so established and recognised would be obliged to admit specified percentage of children in the neighborhood belonging to weaker section and disadvantaged group. They would be required to provide free and compulsory elementary education to them till its completion, as per the mandate of Section 12(1)(c) of the Act of 2009. However, the unaided schools would be entitled only for reimbursement of the expenditure incurred by it to the extent of per child expenditure incurred by the State, or the actual amount charged from the child, whichever is less. After grant of recognition they cannot stake claim for grants in aid, or any other kind of aid from the Government, at a later point of time, as a matter of right. Initial provisional recognition would be granted if conditions as specified stands fulfilled. State Government at best is competent only to impose reasonable restriction as condition for grant of recognition, such as to maintain high quality education and provide security to the staff to be employed by the School.

• LIMITATION

KARNATAKA HIGH COURT

Prakash S/o. Kallappa v. State by Turuvanur Police (Decided on 22.03.2010) MANU/KA/0075/2010

Limitation - section 5 of Limitation Act -  Petitioner was charged for the offences punishable under sections 279, 304A, 337 and 338 of IPC and convicted to undergo simple imprisonment - Petitioner preferred an appeal with delay of 88 days in filing appeal - Application for condonation of delay was filed with affidavit to the effect that he had deposited the fine - the application was rejected, consequently this revision in the HC - Whether the petitioner has made out sufficient cause to condone delay in filing appeal before the lower appellate Court?

Held, when an affidavit is sworn to the facts putting forth sufficient cause, it is necessary for the parties to file counter affidavit to controvert the contents of the affidavit. This aspect of the matter has not been looked into by the lower appellate Court. HC said that advancement of the substantial justice is the main motto of the Courts and if there is some delay, the approach to condone the delay has to be liberal and the trial Court erred in calling upon the petitioner to explain every days delay. Taking into consideration the cause put-forth and the fact that there was no counter affidavit filed by the other side, the HC said that trial Court has committed an error in rejecting the application and not accepting the cause made out to condone the delay. Revision petition allowed.

• TENANCY

DELHI HIGH COURT

Bhagwati v. Vijay Rani ( Decided on 05.04.2010)

Tenancy - Eviction petition -  bona fide requirement - Fore Father in- law of the petitioner was the original tenant - Respondent desired to shift to the ground floor occupied by the petitioner to live close to maternal family - Petitioner opposes the eviction petition disputing the relationship of landlord and tenant between the parties - Petitioner also claimed that respondent requires the suit premises for residential-cum-commercial purpose, therefore seeking to quash the eviction petition - Whether the suit before the High Court is maintainable even when Additional Rent Controller held that bona fide need of the respondent was examined and found to be genuine?

Held, principle that in revision the High Court cannot interfere with the findings of fact arrived at by the Controller on re-appreciation of evidence, has been reiterated in numerous cases. The scope of interference in exercise of revisional powers of this Court is very limited. Therefore, the impugned judgment dated 30.10.2009 is in accordance with law. The same does not suffer from any illegality, perversity or any jurisdictional error, which deserves interference by this Court. Therefore, while upholding the impugned judgment. Petition dismissed.

• SERVICE

MADRAS HIGH COURT

K. Nagarajan v. Superintendent of Police (Decided on 08.01.2010) MANU/TN/0010/2010

Service - Section 4(1) of the Tamil Nadu Prohibition Act - Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules - Petitioner was a sub-inspector of police and an amount was sought to be recovered from him by the State Govt. giving a show cause notice holding him responsible for an illegal detention - Whether the petitioner can be made liable to compensate the state government for damages awarded in a case for an illegal detention by the petitioner?

Held, in any event, when there is liability fixed on the State for payment of compensation, the petitioner, who was directly responsible for the State's liability to pay the amount, is also bound to make good the loss. Under the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, recovery of loss sustained by the State can also be inflicted as a penalty after giving a show cause notice. This court in an earlier case, after referring to various decisions of the Supreme Court, held that there was no illegality in ordering recovery from the salary of the guilty Government servant if any liability is fell on the State. Petition Dismissed.

Kalaivanan v. Principal Chief Conservator of Forests and Head of Force-I (Decided on 08.04.2010) MANU/TN/0384/2010

Service - Promotion - Entitlement thereto -Section 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules - Based on the Charges framed under the Rules against the petitioner, who was appointed as forester by the respondent, a punishment of stoppage of increment for 3 years was imposed -  Punishment was set aside and charges were cancelled in a writ petition filed by  them - again the same charges under some other rule were framed and petitioner was denied promotion to Forest Ranger - present writ petition filed against such order to the HC - Whether the respondent is liable to consider the claim of petitioner for promotion as Forest Ranger during pendency of charge under rule 17(a) of the Rules?

Held, the HC directed the respondent to consider the claim of petitioner for promotion irrespective of pendency of the charge under Rule 17(a). The court earlier has stated that pendency of charge under Rule 17(a) is not a bar for the purpose of consideration and inclusion of such person to the next promotion post. The SC in a case said that the promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted. Petition Allowed.

• CONSTITUTION

BOMBAY HIGH COURT

Maharashtra State Co-Operative Bank Ltd v. Assistant Provident Fund Commissioner and Ors. (Decided on 03.03.2010) MANU/MH/0166/2010

Constitution - Recovery of Provident Fund dues - Auction Notice issued under Employees of the Provident Funds and Miscellaneous Provisions Act, 1952 - Auction of sugar bags was sought to effectuate recovery of dues Validity thereof questioned as illegal and violative of Article 14 of the Constitution of India, 1950 as well as under Section 11(2) of the 1952 Act, Essential Commodities Act, 1955 and the Sugar (Control) Order, 1966 - Petitioner has sought for quashing and setting aside of auction notice - Determination of question of Priority against the claim

Held, there was nothing on record to hold that the sale of sugar exceeded the limits of quota allotted to sugar factory by the Central Government. Constitutional validity of Section 11(2) of the 1952 Act was not challenged by the Petitioner. Provisions of Act of 1955 do not prohibit the action founded on the provisions of Act of 1952. Argument regarding overriding effect due to subsequent legislation held to be of no avail, as this question would arise for consideration only if it were to be held that the provisions of 1955 Act postulate total or absolute prohibition for sale of sugar by PFC in exercise of powers under the 1952 Act. Petition dismissed.

KARNATAKA HIGH COURT

Ms. Anitha Kumari v. State of Karnataka (Decided on 01.04.2010) MANU/KA/0120/2010

Constitution - Petitioners completed course in MBBS and intended to pursue further studies - they required No Due Certificate and completion certificate - in an earlier petition the respondent, Institution, was directed to pay back fee to petitioners - petitioners approached the institution to specify the quantum of bank guarantee, but they failed to give it - Petitioners have prayed in these petitions a writ to direct the respondents to issue the certificates and direct respondent to accept bank guarantee for an amount which petitioners are due for excess fee paid by them.

Held, the court accepted the submission of counsel for the respondent that there is no need for furnishing the figures by them and on the other hand the petitioners have to furnish bank guarantee to the extent of amount that they are entitled. petitioners have to furnish the bank guarantee to the third respondent to the extent of the amount that they are entitled to from the third respondent. Initially the bank guarantee shall be for a period of one year and within that period it the special leave petition filed by the third respondent is not disposed, then the bank guarantee will have to be extended by the petitioners till the disposal of the special leave petition. On furnishing of the bank guarantee by the petitioners, the third respondent to refund the excess fee to the extent of bank guarantee. The court said that the respondent shall issue the No Due Certificate with a condition to claim the amounts from the petitioners.

TRIBUNAL

• DIRECT TAXATION

ITO v. M/s Prasad Production (ITAT Chennai) (Decided on 09.04.2010) MANU/IX/0003/2010

Taxation- TDS Obligation - Assessee made remittance to non - resident company without deducting TDS - AO considering it "fees for technical services" held him liable as assessee in default for not deducting TDS - CIT reversed assessment order - Hence present Appeal - Whether assessee responsible for making payment to a non-resident was liable to deduct tax at source under Section 195 (1) if he did not apply to the AO under Section 195 (2) for permission to remit without deduction at source?- Section 195, Income Tax Act, 1961.

Held, if the assessee has not applied to the AO under Section 195(2) for deduction of tax at a lower or nil rate of tax under bona-fide belief that no part of the payment made to the non-resident is chargeable to tax, then he is not under any statutory obligation to deduct tax at source on any part of the payment.

From the facts of the case it is clear that the AO has mistaken the payment made for services provided by the non- resident company to be payment of technology transfer whereas they are auxiliary to the sale of the equipment. Hence appeal by Revenue dismissed.