SUPREME COURT

• CRIMINAL LAWS

Prakash Kadam and etc.  Vs. Ramprasad Vishwanath Gupta and An. (Decided on 13.05.20110) MANU/SC/0616/2011

Cancellation of Bail - Challenge against thereto - Appellants/Policemen were charge-sheeted for offences punishable under Section 302/34, 120 B and 364/34 of Indian Penal code, 1860 - High Court in appeal cancelled the bail granted by the Session Court to the Appellants - Hence this appeal - Whether High Court was justified in cancelling the bail of the Appellants

Held, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. There are several other factors also which may be seen while deciding to cancel the bail. This is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons. High Court was perfectly justified in canceling the bail to the accused-Appellants. Further, in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake `encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. Appeals are dismissed.

• CONSTITUTIONAL LAWS

Balchandra L. Jarkiholi and Ors. Vs. B.S. Yeddyurappa and Ors. (Decided on 13.05.2011) MANU/SC/0617/2011

Disqualification of Ministers of Legislative Assembly (MLA's) - Validity Questioned thereof - Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 - Appeal against the Order of Speaker of the Karnataka Legislative Assembly by which he disqualified 13 MLA's - Whether the Order of disqualification by the Speaker was just and as per the provisions of Tenth Schedule of the Constitution

Held, Under paragraph 2(1)(a) of the Tenth Schedule, the Speaker functions in a quasi-judicial capacity, which makes an order passed by him in such capacity, subject to judicial review. The scope of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, therefore, enables the Speaker in a quasi-judicial capacity to declare that a Member of the House stands disqualified for the reasons mentioned in paragraph 2(1)(a) of the Tenth Schedule to the Constitution. After considering all the different aspects of the matter and having examined the various questions which were raised, it was held that the proceedings conducted by the Speaker on the Disqualification Application filed by Respondent do not meet the twin tests of natural justice and fair play. The Speaker, proceeded in the matter as if he was required to meet the deadline set by the Governor, irrespective of whether, in the process, he was ignoring the constitutional norms set out in the Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention of the basic principles that go hand-in-hand with the concept of a fair hearing. Disqualification Rules were only directory in nature, even then sufficient opportunity should have been given to the Appellants to meet the allegations leveled against them. The fact that the Show-Cause notices were issued within the time fixed by the Governor for holding the Trust Vote. Paragraph 5 of the Tenth Schedule, was introduced, to deal with the immorality of defection and Floor crossing during the tenure of a legislator. The object behind the said paragraph is to ensure that the Speaker, while holding office, acts absolutely impartially, without any leaning towards any party, including the party from which he was elected to the House. The Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010, disqualifying the Appellants from the membership of the House under paragraph 2(1)(a) of the Tenth Schedule to the Constitution is set aside

Amar Singh Vs. Union of India (UOI) and Ors. (Decided on 11.05.2011) MANU/SC/0596/2011

Interception of Phone - Right to Privacy - Invasion of - Article 21 of the Constitution of India, 1950 - Petitioners learnt from various sources that the Government of India had been intercepting the Petitioner's conversation on phone, monitoring them and recording them - Hence this Petition praying for damages and direction to telecom providers to to disclose all the relevant details with respect to the directions of interception issued to them by the authorities - Hence this appeal

Held, service provider has to act as a responsible agency and cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court. Therefore, while there is urgent necessity on the part of the service provider to act on a communication, at the same time, the Respondent No. 8 is equally duty bound to immediately verify the authenticity of such communication if on a reasonable reading of the same, it appears to any person, acting bona fide, that such communication, with innumerable mistakes, falls clearly short of the tenor of a genuine official communication. Therefore, the explanation of the service provider is not acceptable to this Court. If the service provider could have shown, which it has not done in the present case, that it had tried to ascertain from the author of the communication, its genuineness, but had not received any response or that the authority had accepted the communication as genuine, the service provider's duty would have been over. But the mere stand that there is no provision under the rule to do so is a lame excuse, especially having regard to the public element involved in the working of the service provider and the consequential effect it has on the fundamental right of the person concerned. Petitioner suppressed the fact that he gave statement in that investigation is of a very material fact. It is, therefore, clear that writ petition is frivolous and is speculative in character. The so called legal questions on tapping of telephone cannot be gone into on the basis of a petition which is so weak in its foundation. Petition Dismissed

• FAMILY LAWS

Ruchi Majoo Vs. Sanjeev Majoo (Decided on 13.05.2011) MANU/SC/0621/2011

Custody of Child - Jurisdiction - Respondent/Father filed for divorce and custody of child in American Court - Supreme Court of California issued a red corner notice on allegations of child abduction against the Mother - Mother took refuge under an order passed by the Addl. District Court at Delhi granting interim custody of the minor to her - High Court in petition by the Respondent allowed the petition and set aside the order passed by the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was not ordinarily residing at Delhi - Whether the High Court was justified in dismissing the petition for custody of the minor on the ground that the court at Delhi had no jurisdiction to entertain the same

Held, It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law. The expression `ordinarily resident' means one is ordinarily residing at a given place depends so much on the intention to make that place ones ordinary abode. As per the communications between the parties the High Court was not right in holding that the Respondent's version regarding the letter in question having been obtained under threat and coercion was acceptable. The High Court appeared to be of the view that if the letter had not been written under duress and coercion there was no reason for the Respondent to move a guardianship petition before U.S. Court. The question whether or not the letter was obtained under duress and coercion could not be decided only on the basis of the institution of proceedings by the Respondent in the U.S. Court. If the letter was under duress and coercion, there was no reason why the Respondent should not have repudiated the same no sooner he landed in America and the alleged duress and coercion had ceased. Far from doing so the Respondent continued to support that decision even when he was far away from any duress and coercion alleged by him till the time he suddenly changed his mind and started accusing the Appellant of abduction. The High Court failed to notice these aspects and fell in error in accepting the version of the Respondent and dismissing the application filed by the Appellant. Hence this question was answered in the negative.

 Whether the High Court was right in declining exercise of jurisdiction on the principle of comity of Courts?

Held, The duty of a Court exercising its Parens Patraie jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Respondent's case that the minor was removed from the jurisdiction of the American Courts in contravention of the orders passed by them, is not factually correct. Such proceedings were instituted by the Respondent only after he had agreed to leave the Appellant and the minor behind in India, for the former to explore career options and the latter to get admitted to a school. The charge of abduction contrary to a valid order granting custody is, therefore, untenable. The minor has been living in India and pursuing his studies in a reputed school in Delhi for nearly three years now and is happy living here. Further, even the Respondent does not grudge the Appellant getting custody of the minor, provided she returns to America with the minor. circumstances, repatriation of the minor to the United States, on the principle of `comity of courts' does not appear to us to be an acceptable option worthy of being exercised at this stage. Dismissal of the application for custody in disregard of the attendant circumstances referred to above was not in our view a proper exercise of discretion by the High Court. Interest of the minor shall be better served if he continued in the custody of his mother the Appellant in this appeal, especially when the Respondent has contracted a second marriage and did not appear to be keen for having actual custody of the minor. Second, question also answered in the negative.

Whether the order granting interim custody to the mother of the minor calls for any modification in terms of grant of visitation rights to the father pending disposal of the petition by the Trial Court?

The order of the Delhi Court granting interim custody of the minor to the Appellant did not make any provision for visitation rights of the Respondent father of the child. In the ordinary course the court ought to have done so not only because even an interim order of custody in favour of the parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality. It is important that the minor has his father's care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child's healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial Court after verifying the convenience of both the parties in this regard. The trial Court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter.

HIGH COURTS

• SERVICE LAWS

MADHYA PRADESH HIGH COURT

Mahesh Prasad Bajpai Vs. State of M.P. and Another (Decided on 11.05.2011) MANU/MP/0175/2011

Second Promotion - Denial of - Challenged against thereto - Petitioner challenged the action of the Respondent by which he was ignored for second promotion by filing an application before the State Administrative Tribunal - State Administrative Tribunal was abolished during the pendency of the said application and so the case of tribunal was transferred to court - Court allowed the Petition and directed the Respondents to give retrial benefits as the Petitioner had retired - Respondents did not comply with the Court Orders hence this Petition - Whether the Petitioner was entitled to second promotion as per the facts and circumstances of the case -

Held, the circumstances tend to imply an admission by the Respondents that the Petitioner was working in officiating capacity in a higher post of Senior Horticulture Development Officer since 1990 and that he continued to work in that position till he superannuated on 30th June, 1992. Hence, the petitioner cannot be denied salary for the period intervening the date of his promotion and the date of his superannuation by invoking the principle of 'no work no pay'. The petitioner is, therefore, held entitled to pay of the higher post of Senior Horticulture Development Officer for the entire period intervening between the date of his promotion, i.e., 23rd May, 1991 and the date of his superannuation, i.e., 30th June, 1992. Hence, Respondents directed to pay him arrears of salary for the period intervening between the date of his promotion to the post of Senior Horticulture Development Officer and the date of his superannuation within six weeks of receipt of certified copy of this order and in failure to do so Petitioner will entitled to an interest of 12 percent per annum and the pension of the Petitioner to be revised accordingly.

UTTARAKHAND HIGH COURT

Jagpal Singh & Ors. Vs. State of Uttaranchal and Anr. (Decided on 13.5.2011) MANU/UC/0374/2011

Fixation of Seniority pursuant to regularization - U.P. Regularization of Ad Hoc Appointments (on posts within the purview of Public Service Commission) Rules, 1979 (Rules) - Appellants herein were appointed on ad hoc basis as Junior Engineers were regularized after coming into force of Rule 9 of the said Rule - Whether the Rules provides for that a person appointed under those Rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with those Rules

Held, the 1951 Rules did not authorize any of the appointments of the Appellants on ad hoc basis. The Appellants could only be appointed in the event an exercise had been made by the Commission to select people for being appointed and there had been no such selected people available for appointment and that too only for 12 months. In the circumstances, question of any of the Appellants and even those two Appellants, whose appointments were subsequently approved by the Commission, were not entitled to their seniority from the date of their initial appointment. Whereas the other Appellants were entitled to their seniority from the date of their regularization in terms of 1979 Rules. In respect of members of the Hill Sub-Cadre, in accordance with the Hill Sub-Cadre Rules, a separate seniority list was prepared and on the basis of the said seniority list, promotions were given to Junior Engineers, who were in the Hill Sub-Cadre, to the posts of Assistant Engineers, available in the Hill Sub-Cadre, in the year 2000. After the creation of State of Uttaranchal it was decided to do away with the Hill Sub-Cadre. As a result, a few Junior Engineers, who still remained Junior Engineers in the Hill Sub-Cadre for having not been promoted to the post of Assistant Engineer in the year 2000, were to be merged once again with the general cadre and for that, it became necessary to prepare a fresh seniority list. That was prepared in 2001. No sooner that was prepared in 2001, in 2002 that seniority list was challenged by the Appellants by filing the said three writ petitions contending that they are entitled to count their seniority from the date of their initial appointment on ad hoc basis and not from the date they were regularized or from the date two of them were found suitable by the Commission and, accordingly, sought to interfere with the matter which stood settled since 1986. The whole purpose and object of the writ petitions by the Appellants was, thus, gross mala fide. For the reasons, inter alia, as above, the writ petitions have been dismissed and exemplary cost of Rs. 3 lacs each imposed on the Appellants so that the same become an example and prevent others from taking similar steps

• EDUCATION LAWS

RAJASTHAN HIGH COURT

Tanuj Vaishnav & Ors. Vs. State of Rajasthan & Ors. And Keshar Vs. State of Rajasthan & Ors. (17.5.2011) MANU/RH/0346/2011

Cancellation of Examination - Petitioner herein have prayed for cancellation of Examination on ground that question paper were disclosed prior to Examination - Whether the relief claimed by the Petitioner could be granted

Held, If the Petitioners had any grievance with regard to disclosure of the question papers and adverse effects of that, then they should have approach the Court as soon as possible after coming into knowledge about disclosure of the question papers and not waited until getting declared unsuccessful in the competitive examination concerned they approached this Court. Accordingly, the ex-parte interim order dated 24.11.2010 is vacated. The stay applications preferred by the Petitioners in both the petitions are dismissed. The Respondents are at liberty to go ahead with the process of selection in pursuant to Nurse Grade-II Competitive Examination, 2010. However, the appointments made in pursuant thereto shall remain subject to final decision of these writ petitions.

• CRIMINAL LAWS

BOMBAY HIGH COURT

Harjeetsingh Niranjansingh Jabbal Vs. The State of Maharashtra through the Principal Secretary, Home & Prisons, Government of Maharashtra, Mantralaya, Mumbai and The Superintendent Yerawada Central Prison, Pune (Decided on 02.05.2011) MANU/MH/0602/2011

Premature release of prisoners - Petitioners convicted for offences under sections 302 and 397, Indian Penal Code, 1860 - Petitioner claimed benefit of premature release on basis of clause 4 of Guidelines formulated by Home Department - Appropriate Authority categorised petitioner under Category 5(a) of Guidelines, which prescribes total imprisonment for 26 years - Present writ petition - Whether Category 5(a) of Guidelines of 1992 was ultra vires of Article 14 of the Constitution of India , 1950

Held, Classification of robbers/dacoits as habitual and one time offenders and imposition of 26 years imprisonment was on rationale basis. Category 5(a) cannot be discriminatory merely because classification was not found while dealing with convicts who committed murders during dacoities and robberies. Crimes like robbery and dacoity are pre-planned in nature and don't happen at spur of moment. No fault in Category 5(a) of Guidelines. Guidelines of 1992 framed to bring more clarity and overcome shortcomings of Guidelines of 1978 which clubbed offences theft, smuggling etc. Writ Petition dismissed.

TRIBUNALS

• CustomS

Authority for Advance Ruling

M/s AmSafe Services India Pvt. Ltd. Vs. The Commissioner of Customs, Bangalore (Decided on 13.05.2011) MANU/AR/0010/2011

Exemption - Notification No. 39/96-Cus dated 23rd July, 1996 - Applicant proposed to import and supply parts of aircraft and ground handling equipment to Hindustan Aeronautics Limited (HAL) - Whether the applicant would be correct in availing the benefit of exemption from basic Customs duty and additional Customs duty under Entry No. 10 of notification No. 39/96-Cus dated 23rd July 1996 (as amended) if the goods were supplied to HAL who shall use the same for manufacturing or servicing of the aircraft to be supplied to Ministry of Defence

Held, that the exemption to the goods specified in column (2) against Serial No. 10 of the Notification no. 39/96-Cus shall be available to the applicant irrespective of the classification of the goods under any Chapter or heading of the First Schedule to the Customs Tariff Act, 1975. Exemption shall apply only if the conditions specified in column (3) against Serial No. 10 of the notification were complied with i.e. the applicant produces a duty exemption certificate showing the details of the purchase order placed by the Ministry of Defence and the quantity of items required to be imported to execute the order in accordance with the conditions . Duty exemption certificate shall also indicate the details of the purchase order placed on the foreign suppliers indicating the description and the quantity of the items as specified in the conditions of exemption. Further, the exemption shall apply only if the certificate contains the prescribed information and signed by an officer not below the rank of a Joint Secretary to the Government of India in the Ministry of Defence

Whether the Applicant would be correct in classifying the goods sought to be imported under Tariff Classification 8803 (Parts of goods of heading 8801 or 8802) as the goods shall be used as parts of aircrafts?

Held, that the Commissioner has informed that vide its letter dated 1st April, 2011 the Applicant has revised the HSN classification of the goods which they intend to import and sell in India and therefore there were no disputed classifications .Therefore, in view of the aforesaid developments and in view of the lack of detailed information before it the Authority did not intend to go into the merits of the classification of various items adopted by the Commissioner of Customs and accepted by the Applicant.

• DIRECT TAXATION

ITAT MUMBAI

ACIT Vs. M/s. Edicon Mining Equipment (Decided on 18.05.2011) MANU/IU/0393/2011

Traveling and Conveyance Expenses - Deletion of - Assessee a company engaged in the business of manufacturing Pneumatic tools claimed for Travelling and Conveyance Expenses but Assessing Officer (AO) held that the detailed narration of the purposes of the travelling was not available and, therefore, it could not be related to the business necessity of the Assessee - On Appeal the CIT(A) deleted the addition of made by AO holding that AO has not brought any evidence on record to show that the expenses incurred were not for the purpose of business - Hence this appeal - Whether the Cost incurred for Travelling and Conveyance Expenses was part of the business necessity of the Assessee

Held, in the light of the fact that the details of the expenses have been furnished and the fact that the persons undertaking the travel were employees and directs of the Assessee, the Assessee has prima facie discharged the burden of showing that the expenses were incurred for the purpose of business of the Assessee. The basis on which the AO made the disallowance was the absence of proper narration of the purpose of the travel in the details of the traveling expenses. This cannot be the proper basis to make the disallowance hence, CIT(A) rightly deleted the disallowance made by the AO. Consequently, ground No.1 of the revenue is dismissed

Whether On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the disallowances of Rs. 11,12,741/- u/s. 69C of the I.T. Act out of Transportation charges without appreciating the findings of the remand report of the A.O. dated 4/12/2008"

Held, The Appellant company had incurred an expense of Rs. 30,06,104/- for transportation of mining equipment and the relevant raw material. The details of transportation expenses were also filed before the AO, however, the AO asked for confirmation of transportation charges from three parties, which was not provided by the Assessee. In the remand report the AO has considered the confirmation filed by the parties and has not drawn any adverse inference. In such circumstances we are of the view that the addition was rightly deleted by the CIT(A). Consequently Ground No.2 raised by the revenue also dismissed.