SUPREME COURT

• CRIMINAL LAWS

Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (Decided on 19.04.2010) MANU/SC/0268/2010

Order of Acquittal - Reversal thereof by High Court in Appeal - Challenge against thereto - High Court while reversing order of acquittal passed by the Trial Court convicted Appellant under Sections 302, 201, 120B of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959 - Whether the prosecution established its case beyond reasonable doubt against all the three accused?

Held, prosecution established its case beyond doubt against the Appellants. Presence of the Accused at the scene of crime was proved through the ocular testimonies of relevant witnesses. Even there is delay as alleged in recording the statement of the witnesses, it does not necessarily discredit the testimonies. Court may rely on such testimonies if they are cogent and credible. Evidence regarding the actual incident, the testimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused as well as his conduct after the incident proved his guilt beyond reasonable doubt. High Court rightly analysed all the evidence and arrived at correct conclusion. Appeals dismissed.

Order of acquittal - Scope of the Appellate Court - Whether Appellate can interfere with an Order of acquittal of the Trial Court?

Held, following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal namely (i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found - Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions - Appellate Court can also review the Trial Court's conclusion with respect to both facts and law - While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal (v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so If the Order is "clearly unreasonable", it is a compelling reason for interference. While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the Order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion. When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.

Reevaluation of Evidence - Whether Appellate Court has power to re-evaluate evidence laid before the Trial Court?

Held, Appellate Court has all the necessary powers to re-evaluate the evidence let in before the Trial Court as well as the conclusions reached thereto. It has a duty to specify the compelling and substantial reasons incase it reverses the order of acquittal passed by the Trial Court. In the instant case, the High Court had reversed the order of acquittal by adhering to all the ingredients and by giving cogent and adequate reasons.

Lodging of First Information Report (FIR) - Whether Phone Calls constitutes an FIR?

Held, Phone calls made immediately after an incident to the police constitutes an FIR only when they are not vague and cryptic. Calls purely for the reason of getting the police to the scene of crime do not necessarily constitute the FIR. In the present case, the phone calls were vague and therefore could not be registered as the FIR - It was properly lodged as per the statement of one of the witness PW-2.

Vitiation of Trial - Duty of Public Prosecutor - Whether non-performance of duty by a Public Prosecutor under the common and procedural laws vitiate the Trial?

Held, the public prosecutor is under a duty of disclosure under the Code of Criminal Procedure, Bar Council Rules and relevant principles of common law and violation of duty does not necessarily vitiate the entire trial. A trial would only be vitiated if non-disclosure amounts to a material irregularity and causes irreversible prejudice to the accused. In the present case, no such prejudice was caused to the Accused / Appellant, and therefore the Trial is not vitiated.

Power and Role of Public Prosecutor in Criminal Trial - What are the powers and duties of Public Prosecutor in a Criminal Trial?

Held, prosecution in a Sessions Court cannot be conducted by any one other than the Public Prosecutor. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it - A public prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the prosecutor to be lax in any of his duties as against the accused.

Police Diary - Whether it is of significance of requiring an investigating officer/officer in charge of a police station to maintain a diary?

Held, purpose and the object of maintaining diary is that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation. Right of the accused in relation to the police file and the general diary is a very but still the accused has been provided with definite rights under the provisions of the Code and the constitutional mandate to face the charge against him by a fair investigation and trial.

Process of identification - Necessity thereof - Whether Photo identification hit by Section 162 of the Code of Criminal Procedure, 1973?

Held, process of identification was necessary for the Investing Officer (IO) to be certain that this is the man that the said witnesses had witnessed/seen as the person responsible. To say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence and it is only by virtue of Section 9 of the Evidence Act the act of identification becomes admissible in Court. Logic behind TIP, including photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. Facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act and as a general rule, the substantive evidence of a witness is the statement made in Court.

• ELECTRICITY LAWS

West Bengal Electricity Regulatory Commission v. Hindalco Industries Ltd. & Ors. (Decided on 22.04. 2010) MANU/SC/0284/2010

Wheeling Charges - Determination of - Controversy between the parties revolved around the Methodology, criteria/formula to be applied in determining the wheeling charges in accordance with the applicable Regulations framed under the Electricity Act 2003 - Appellants claimed that the formula/ methodology/criteria for determining wheeling charges has to be in terms of form 1.27 attached to the Tariff Regulations, 2005 and in spite of the clear and categorical statutory provisions contained in the applicable regulations; the Appellants were wrongly directed by the Tribunal to re-determine the wheeling charges.

Held, A combined reading of all the applicable regulations, according to the appellants, leads to the irresistible conclusion that for determining wheeling charges total distribution cost of the network and not the voltage-wise cost would be the determining factor. The interpretation made by the Tribunal, if accepted, would render the regulation framed by the appellant otiose. The Tribunal incorrectly understood and interpreted the expressions applicable distribution network as the distribution network cost which is to be determined at the relevant voltage level.

The appeals have to be allowed on the short ground that the Tribunal has failed to consider the objection raised by the Appellants with regard to the maintainability of the appeal filed by Respondent No.1, before the Tribunal.

The specific submission made by the Appellant with regard to the maintainability of the appeal was an important issue, which needed consideration by the Tribunal. Numerous issues, which have been raised in these appeals on merits, were also raised before the Tribunal, which seem to have escaped the notice of the Tribunal rendering its decision vulnerable.

It would be in the interest of justice to remand the matter back to the Tribunal for fresh consideration of all the issues after taking into consideration the factual and legal submissions made by the appellant. In view of the above both the appeals succeed and are allowed. The Order passed by the Tribunal is set aside. The appeals are remanded back to the Tribunal to be decided afresh on merits, in accordance with law preferably within a period of three months of the receipt of a certified copy of this Order.

• LABOUR AND INDUSTRIAL LAWS

Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and Ors. (Decided on 26.04.2010) MANU/SC/0292/2010

Retrenchment - Section 25 F of Industrial Dispute Act,1947 - Services of Workmen engaged as as casual in Central Telegraph Office Telegraph Office, Bhopal discontinued - Reinstatement - Whether relief of reinstatement and back wages justified?

Held, it has been consistently held by this Court that relief by way of reinstatement with back wages not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. Ratio in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. followed. If the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would sub serve the ends of justice. Compensation of Rs. 40,000/- to each of the workmen shall meet the ends of justice. Appeal Allowed.

• SERVICE LAWS

Union of India v. V.N. Singh (Decided on 06.04.2010) MANU/SC/0234/2010

Irregularities - Punishment - Section 122 of the Army Act, 1950 - Respondent subjected to Court martial and inflicted with punishment of forfeiture of 8 years of service for his role in irregularities in purchasing of hygiene and chemicals - Order of punishment set aside by High Court on the ground that Court martial was time barred in view of provisions of Section 122(1) (b) of Army Act - Whether High Court was justified in upsetting findings recorded in Court martial?

Held, After expiry of period of limitation, Court martial will ordinarily have no jurisdiction to try the case. Question of limitation to be determined under section 122 of Act is a mixed question of fact and law. In exercise of writ jurisdiction under Article 226 of Constitution, ordinarily High Court will not interfere with findings of Court martial on question of limitation decided under Section 122 of Army Act. Power to initiate action in terms of Section 122(1) (b) of Army Act was only with GOC Delhi area. Date of commencement of period of limitation for purpose of GCM of Respondent, commenced on 3rd December,1994 when direction was given by GOC-in-c Western Command to initiate disciplinary action against Respondent. Plea that date of submission of report by Technical Court of Inquiry shout be treated as date from which period of limitation shall commence has no substance. High Court wrongly concluded that period of limitation expired on 4th March,1996. Respondent had failed to monitor local purchase of hygiene and chemicals but there was no mention ACR of respondent that respondent was himself responsible for irregularities in purchase of hygiene and chemicals. It was only after detailed investigation by Staff Court of inquiry that irregularities committed by respondent and his role in purchase came to light. GCM commenced Trial against Respondent within period of limitation. Impugned judgment legally unsustainable and set aside. Appeal allowed.

HIGH COURTS

• ELECTION LAWS

BOMBAY HIGH COURT

Shrikant Chahakar and Ors. v. The State of Maharashtra through Minister, Rural Development and Ors. (Decided on 08.04.2010) MANU/MH/0317/2010

Removal of Elected member of Gram Panchayat on alleged grounds of abuse of power and obstruction in work - Whether removal of an democratically elected member justified on the ground of opposing resolution of Gram Panchayat?

Held, Right to vote either for or against the resolution can be exercised by the member in respect of a resolution and it is his free will which would determine on which side he would vote. Moral exhortations cannot take the place of a legal duty. 

• CRIMINAL LAWS

MADRAS HIGH COURT

M. Selvam v. State represented by the Inspector of Police (Decided on 09.04.2010)

Inherent powers of High Court - Execution thereof under Section 482 of the Code of Criminal Procedure, 1973 - Whether the High Court is empowered to give directions under sec. 482 to quash proceedings against the petitioners?

Held, the fact that there was a further investigation under Section 173(8) Cr.P.C. would not stand in the way of the concerned Court to consider the materials gathered in the original investigation. The process of shifting the material and weighing the evidence is one which is reserved for the trial Court. This Court in exercise of its inherent power cannot enter upon such an exercise. Investigation is the realm of the police. Where the investigating officer has thought it fit that the petitioners herein also be arrayed as accused in the case, it is not for this Court to state otherwise.

BOMBAY HIGH COURT

Shri Dilip Kanal and Anr. v. The State of Maharashtra (Decided on 10.02.2010) MANU/MH/0137/2010

FIR registered in pursuance to application moved under section 156(3) of the Code of Criminal Procedure, 1973 by the complainant without exhausting the procedure under section 154 Crpc - Whether order passed under section 156(3) by Chief Metropolitan Magistrate is illegal in pursuance to the fact that complainant never exhausted procedures of section 154 of the Code?

Held, once FIR is lawfully registered, whether that is done on the information given by the complainant or in pursuance of an Order passed under Section 156(3) becomes insignificant.

• LABOUR AND INDUSTRIAL LAWS

MADRAS HIGH COURT

The United India Insurance Co. Ltd. v. Kunjal, Veeran and B. Saroja (Decided on 12.04.2010) MANU/TN/0420/2010

Quantum of Compensation - Section 10 of Workmen Compensation Act, 1988 - Sections 147(1) and 164 of Motor Vehicles Act, 1988 - Whether deceased died during the course of doing his wok under employment of the opposite party and the Appellant, insurer, is liable to pay compensation?

Held, the accident had occurred at the spot where the rigging operations had been carried out for the purpose of drilling a bore well and the deceased, to aid in the carrying out of the above drilling work, has climbed down the well with the help of bucket, lost his grip and had fallen in. As such, the accident had happened in the course of his employment, while he was working in the rig unit of the lorry. In the relevant period, the rig unit lorry had been insured with the appellant. As such, the appellant is liable to pay the compensation. Appeal Dismissed.

BOMBAY HIGH COURT

Maharashtra State Power Generation Company Limited, Koradi Thermal Power Station, Koradi v. Suresh Shantaram Ghode And The Presiding Officer, First Labour Court, Civil Lines, Nagpur, (Decided on 15.04.2010) MANU/MH/0360/2010

Retrenchment - Non completion of 240 days - Whether work done in two independent establishments can be clubed together to claim continuous working of 240 days and also without the compliance of the statutory provision of section 25-F Industrial Disputes Act,1947 as illegal?

Held, court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it, Petitioner has the right to allot work to outside agency but in doing so, if some workman was required to be retrenched, procedure under section 25F of Industrial Dispute Act should be followed.

DELHI HIGH COURT

Maheshwar Singh v. Indomag Steel Technology Ltd. (Decided on 19.04.2010) MANU/DE/0830/2010

Verbal Termination - Section 2(s) of the Industrial Disputes Act, 1947 - Whether a draftsman would fall under the definition of a workman?

Held, no evidence has been placed on record by the respondent management to draw conclusion that the petitioner was not under the supervision of his superiors or the petitioner himself was the final authority so far his innovative ideas or thoughts were concerned, and in the absence of any such evidence placed on record from the side of the respondent management, the exclusion of the petitioner from the definition of 'workman' in the face of evidence placed on record by the petitioner sufficiently proves that his nature of duties were skillful and technical in nature and therefore the job of 'draftsman' as assigned to the petitioner cannot be said to fall outside the ambit and scope of definition of 'workman' envisaged under Section 2(s) of the I.D. Act.

Saraswati Construction Company v. Central Board of Trustees (Decided on 19.04.2010) MANU/DE/0827/2010

Employees Provident Fund and Misc. Provisions Act, 1952 - Enquiry under section 7A - Employment of minimum number of employees - Onus of Proof?

Held, it is a settled legal position that if any establishment or employer is not covered under the said Act, then it is for the employer to place sufficient cogent and convincing material before the designated authority in an enquiry under Section 7A so as to satisfy the authority with regard to the non-applicability of the Act and on failure to place any such material, the onus cannot be shifted on the EPF authorities to prove the applicability of the Act, who under no circumstances, can be in possession of necessary records evidencing the extent of strength of employees in any particular establishment.

• SERVICE

DELHI HIGH COURT

J.K. Sawhney v. Punjab National Bank (Decided on 19.04.2010) MANU/DE/0829/2010

Retirement Benefits - Articles 14 and 21 of the Constitution as benefits are based on grounds of intelligible differentia - Whether by extending benefits to the retired whole time Directors (Chairman, Managing Director, Executive Directors) is discriminatory vis-à-vis all other retired bank employees including the petitioner?

Held, no parity can be claimed by these bank employees of various ranks with that of the Executive Directors and CMDs etc. The case of the petitioner is not that although they are equal to those directors of the bank but they are still being discriminated as similar treatment is not meted out to them. The service conditions of the Executive Directors of the Bank, drafted by the Central Government are not at par with that of the petitioner and therefore the petitioner cannot claim being a victim of any discrimination by virtue of medical reimbursement being denied, as all of them are governed by a separate set of service conditions. Petition dismissed.

• CIVIL LAWS

MADRAS HIGH COURT

K. Sakthi Rani v. The Secretary of The Bar Council of Tamilnadu (Decided on 16.04.2010) MANU/TN/0419/2010

Cancellation of Enrolment by Bar Council - Whether persons who obtained Post-graduate Degrees in Open Universities and thereafter joined the law course and completed, are entitled to be enrolled on the rolls of the Bar Council?

Held, a conjoint reading of the provisions of the Advocates Act, would clearly show that the Bar Council of India has got ample power and authority to regulate and control the legal education, particularly with reference to entry of a student into a law course. It cannot be said for the above said purpose, the qualification for entry of a student into a law course cannot be insisted by the Bar Council of India. Judgment of the Hon'ble Apex Court would be a binding precedent insofar as it holds that a degree obtained under the Indira Gandhi National Open University Act, 1985 from an Open University is not a valid degree in the eye of law. However, the said judgment cannot be construed to hold that a person, who after obtaining the said degree from the Open University and thereafter, completed law course, would be barred from getting himself enrolled. The doctrine of promissory estoppel would be applicable to the case of the petitioners herein. petitioners have competed with the regular students and completed the course. The petitioners also got entry by way of open competition and it is nobody's case that their entry to the Law College is otherwise irregular. Hence petitioners are entitled to succeed upon Article 14 of the Constitution of India and on the principles of promissory estoppel, acquiescence, legitimate expectation and equity. Petitions challenging order of cancellation of enrollment allowed.

KARNATAKA HIGH COURT

Sri Chenna Setty v. Hiremagalur Vyavasaya Seva Sahakara Bank (Decided on 19.04.2010)

Election of President of Societies - Injunction - Calender of events and fixing date for election - Wether interim injunction granted to the order of Administrator fixing date for election and publishing calender of events justified in law?

Held, that this court would not normally interfere with the interim order passed by the learned single Judge in appeal except in compelling circumstances. In the present case it is not disputed that as per the order impugned in the writ petitions the Administrator was appointed and he was directed to hold election to the post of President to the Society on 22.04.2010 and the calender of events is not challenged in the writ petitions and the interim order is passed on the same day. Court held that when calendar of events has been published, this Court would not interfere with the calendar of events and the appropriate order to be passed in such cases would be to permit the elections to be held as per the calendar of events and make the election subject to the result of the writ petition. The Court modified the order of Interim injunction.

• TAX LAWS

Sales Tax

BOMBAY HIGH COURT

Shree Venkateshwara Petro Chemicals Pvt. Ltd. and Anr. v. The Assistant Commissioner of Sales Tax and Ors. (Decided on 15.04.2010) MANU/MH/0334/2010

Reassessment proceedings - Alleged violation of the statutory provisions of Section 35 of the Bombay Sales Tax Act, 1959 on the ground of Concealment of sales, Inter-State movement of goods and Bogus C-forms - Whether notice for reopening of assessment proceedings justified and based on material giving rise to belief of alleged violation?

Held, even one potent ground supported by prima facie material is sufficient to conclude prima facie suppression of correct information or disclosure of wrong information by the Assessee Under Section 35 of the BST Act, 1959 the Assessing Authority has power to reopen the assessment within eight years as has been rightly done in the present case.

• CONSTITUTION LAW

KARNATAKA HIGH COURT

Smt Shavari v. The State of Karnataka (Decided on 19.04.2010)

Quashing of the notification making reservations and rotation effected in respect of Grama Panchayat Elections - Subsequent notification was issued notifying calender of events - Whether notification providing for reservation and rotation is liable to be quashed in view of subsequent notification issued?

Held, in view of the notification of the calender of events, there is a bar for this Court to entertain this petition as contemplated under Article 243-O of the Constitution of India. In this view of the matter, this petition cannot be entertained. Petition dismissed.

• PROPERTY LAWS

BOMBAY HIGH COURT

Manoramabai and Ors. v. Municipal Council, Saoner, (Decided on 16.04.2010) MANU/MH/0337/2010

Determination of lease period - No fix period mention in the lease deed - Whether lease can be treated as a perpetual lease?

Held, nature of the lease has to be decided by construing the terms of the lease itself, when a lease is of fixed period with no option for renewal no inference except that it was for a fixed period can be drawn.

• TRUST AND SOCIETIES LAWS

MADRAS HIGH COURT

Indiran Nanchil v. The President, Dhakshina Barath Hindi Prachar Sabha (Decided on 26.04.2010)

Re-registration of Society - Section 52 of the Tamil Nadu Societies Registration Act - Societies Registration Act, 1860 - Dhakshina Barath Hindi Prachar Sabha Act, 1964 - Writ petition filed to call for the records relating the Dhakshina Barath Hindi Prachar Sabha to reconstitute the Sabha as per the provisions of the Act - Whether the Petitioner is entitled for re-registration of Sabha and reconstitution of the Sabha under Dhakshina Barath Hindi Prachar Sabha Act, 1964?

Held, any work done, accounts maintained, alterations to the rules and regulations and dissolution of the Sabha cannot be done without the prior approval of the Government of India. Whileso, the petitioner, without bringing the alleged irregularities to the notice of the Government of India and obtaining prior approval of the Central Government, cannot prematurely file the present writ petition seeking a direction to reconstitute the Sabha. Petition dismissed.

TRIBUNAL

• DIRECT TAXATION

Assistant Director of Income Tax - International Taxation, Circle 2(2),Mumbai v. Valentine Maritime (Mauritius) Ltd, (Decided on 05.04.2010) MANU/IU/0103/2010

Permanent Establishment (PE) under DTAA - Test of Interconnection and Interdependence - Assessee - company incorporated in, and tax resident of, Mauritius - Engaged in business of marine and general engineering and construction, executed three contracts - individually none of the contract's duration was nine months, the threshold limit, as applicable for construction of PE, under the India Mauritius tax treaty - But cumulatively, the said duration exceeded the limit - Whether in determining whether the Assessee had a PE in India, the duration of all contracts could be taken collectively? - Article 5, DTAA between India and Mauritius

Held, the true test, is in interconnection and independence - in addition to geographical proximity and commercial nexus. There is no finding, nor even a suggestion, by any of the authorities below to the effect that the three contracts are inextricably interconnected, interdependent or can only be seen only as a coherent whole in conjunction with each other. As a matter of all the three contracts are for three different purposes- for charter of accommodation barge, for use of barge in domestic are and for replacement of decks. None of these contracts are such that these can be viewed as interconnected or interdependent. The CIT(A) was thus quite justified in holding that the duration of these projects cannot be aggregated for the purposes of ascertaining whether or not the permanent establishment of the Assessee can be said to have existed in India. It is an admitted position that unless the time spent on these different contracts is aggregated, the threshold limit of nine months, as laid down in Article 5(2)(i), cannot be satisfied. In view of these discussions, and bearing in mind entirety of the case, we hold that the CIT(A) was quite justified in holding that the Assessee did not have a permanent establishment in India.