SUPREME COURT

• CRIMINAL LAWS

A.B Bhaskar Rao Vs. Inspector of Police, CBI, Vishakapatnam (Decided on 23.09.2011) MANU/SC/1110/2011

Conviction - Quantum of punishment thereto - Special Judge convicted Appellant for offence punishable under Section 7 and Section 13(ii) read with 13(2) of Prevention of Corruption Act, 1988 - Appellant filed an appeal before High Court who dismissed the Appeal and confirmed order of conviction passed by lower Court - Whether the Appellant's plea for leniency and reduction of the period already undergone is justified

Held, High Court in exercise of its jurisdiction under Section 482 of Criminal Procedure Code, 1973 and this Court under Article 142 of Constitution, would not ordinarily direct quashing of a case involving crime against the society, particularly when both High Court and trial Court had found that charge levelled against Appellant had been proved by prosecution by placing acceptable evidence. Further, orders of certain Courts as relied by the Appellant do not disclose any factual details and other relevant provisions under which Accused had been convicted. In absence of such details, Court rejects the Appellant's plea. Hence, Appeal dismissed.

• CONSTITUTIONAL LAWS

State of Punjab Vs. State of Haryana and Ors. (Decided on 23.9.2011) MANU/SC/1102/2011

Injunction - Claim for - State of Punjab filed suit under Article 131 of Constitution of India, 1950 read with Order XLVII of Supreme Court Rules, 1996 and claimed a decree for perpetual injunction restraining State of Haryana from further proceeding with digging of a channel and construction of an embankment under project named Hansi Branch by punturing Bhakra State Line Canal - Further said State has also prayed for a mandatory injunction to dismantle embankment of project -A decree of perpetual injunction restraining Union of India, its agents or departments from granting any clearance to project named Hansi Branch in absence of concurrence of State of Punjab as contemplated and mandated by Article 13 of Bhakra Nangal Agreement entered into between erstwhile State of Punjab and State of Rajasthan

Held, although both States were canvassing principle of inter-state cooperation, yet there was this unfortunate controversy. The Central Government had not taken any stand whatsoever. Whether dispute should be referred to Inter-State River Water Disputes Tribunal was one of the issues to be decided in the suit. But this Court was required to decide interim application on basis of data which was made available to us. Hence, in view of large damage which was caused in the year 2010 and which is likely to be caused in Haryana, if bandh was not properly repaired as undertaken, then balance of convenience was in favour of State of Haryana/Defendant. It was rightly pointed out by State of Haryana that if relief as prayed for was granted to State of Punjab, then State of Haryana which will suffer greater loss and irreperable injury. It could not as well be denied that State of Haryana had right to carry out necessary work in its territory and also duty to its citizens. Therefore, it was not possible to entertain the interlocutory application, same was therefore rejected.

• CIVIL LAWS

Lalit Kumar Modi Vs. Board of Control for Cricket in India (Decided on 26.09.2011) MANU/SC/1114/2011

Suspension order - Challenge thereto - Disciplinary authority passed an order of suspension on the ground of alleged breach of confidentiality by a bidder - Writ petition filed in Bombay High Court whereby Division Bench dismissed the same - Hence, present Special Leave Petition

Held, there must exist a real danger of bias. Following T.P Daver v. Lodge Victoria, though such domestic inquiries have undoubtedly to be fair, a member of society cannot stretch the principle of fairness to the extent of demanding a Tribunal consisting of outsiders, on the bias that the society members are biased against him. Petitioner had in clear terms stated that he was not making any personal allegations against two members of the Disciplinary Committee and has alleged that institutional bias against the members of Disciplinary Committee which was only on the basis of participation of the meetings of the first Respondent Society. In this way, institutional bias could be alleged against each and every member. The Petitioner may have an apprehension but it was not possible to say from the material on record that he was facing a real danger of bias. This Court could not presume that three member Committee would not afford Petitioner a fair hearing or that it would not render unbiased findings. Taking a view as canvassed by Petitioner would lead to a demand for interference in enquiries conducted by all other societies in such situations and that could not be approved in view of law laid down by this Court. Hence, Judgments of both authorities below was upheld and present Petitions dismissed.

HIGH COURTS

• SERVICE LAWS

DELHI HIGH COURT

Shri krishnan Vs. Union of India and Ors. (Decided on 23.09.2011) MANU/DE/3724/2011

Appointment - Challenge thereto - Petition impugns appointment of Respondent No.3 as Director of Respondent No.2 and further a mandamus was sought for selection/appointment of Director in accordance with Rules of Respondent No.2/Society and after issuing an open advertisement and notifying the Employment Exchange regarding the vacancy - Also an application for interim relief was also issued

Held, Howsoever bona-fide the reasons which prevailed with the Appointing Authority and the Selection/Search Committee to not publish open advertisement may be, the procedure followed, was in violation of the procedure prescribed for appointment. The procedure followed could not said to be such which could have informed all prospective applicants of the vacancy or given them an opportunity to be considered therefore. Communications stated to have been sent by e-mail by the Chairman of the Executive Council of Respondent No.2/Society and by Selection committee to various individuals could not be a substitute for open advertisement. The e-mails even if delivered to the concerned personnel in the University and seen by them, still left them to inform the prospective desirous applicants of the vacancy. Thus, procedure followed was not found to be giving any option to all the persons eligible for appointment. Interim stay on appointment process was granted. The Appointment Authority subsequently agreed to consider for appointment the Petitioners who had been precluded from this process. Hence, appeal is allowed

• EXCISE

DELHI HIGH COURT

CIT Vs. Radhika Containers Pvt. Ltd. (Decided On 01.09.2011) MANU/DE/3408/2011

Penalty - Reduction of - Whether Tribunal erred in law while reducing penalty imposed to an amount which was less than duty amount re-quantified by it, ignoring provisions of Section 11AC of the Central Excise Act, 1944

Held, interest chargeable under Section 11AB was a sort of civil liability imposed upon Assessee, for retaining amount to which revenue was entitled with him and utilising the same, instead of allowing same to come into the State coffer - Section 11AC is applicable only to those cases, where there is evasion of duty intentionally, by fraud, collusion or willful mis-statement or suppression of facts - Person, who deliberately evaded duty, was required to pay penalty equivalent to amount of duty determined as evaded by fraud, collusion etc. - Therefore, Section 11AC being penal provision, also harsh and stringent, there was no discretion left with authority to impose any different quantum of penalty - Question was answered in favour of the Revenue - Order of Tribunal was set aside to the extent it reduced penalty to less than amount quantified as duty evaded by Assessee - Appeal allowed.

• CRIMINAL

BOMBAY HIGH COURT

Arjun Machindra Puri Vs. The State of Maharashtra, (Decided on 06.09.2011) MANU/MH/1097/2011

Conviction - Challenged thereto - Circumstantial evidence - Sections 302,201,176 and 498-A of the Indian Penal Code, 1860 (IPC) - Appellant was convicted for the murder of his wife - Whether Appellant was guilty of causing death to his wife  

Held, the circumstances from which the conviction was to be drawn should be fully proved, conclusive in nature and all the facts established to be consistent with the hypothesis of the guilt and inconsistent with the innocence of the Accused. The conduct of the Appellant in not informing the parents, exhuming the dead body without waiting for them and explanation that the deceased died due to chest pain were totally consistent with the hypothesis of the guilt. Appeal dismissed for lack of merits. In a case based on circumstantial evidence, the circumstances from which the conviction was to be drawn should be fully proved, conclusive in nature and all the facts established to be consistent with the hypothesis of the guilt and inconsistent with the innocence of the Accused

DELHI HIGH COURT

Rohit Shekhar Vs. Shri Narayan Dutt Tiwari and Anr. (Decided on 23.09.2011) MANU/DE/3722/2011

Paternity suit - Directions to furnish a blood sample for DNA testing - Refusal thereto - Whether a person can be physically compelled to give a blood sample for DNA profiling in compliance with a civil court order in a paternity action - What are the consequences which would visit the defence of the defendant upon his refusal to comply with the court direction

Held,  the passing of an order for medical examination would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. However, in civil litigation involving parentage claims and denials, there is hardly any legislation or jurisprudence permitting use of force on an adult capable of giving informed consent for drawing a bodily sample for DNA profiling.  If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled take the refusal on record and to draw an adverse inference against him. Consequently, as the presumption of paternity would follow upon a refusal by an adult person to give the blood sample for testing and Such a presumption can be rebutted only by clear and convincing evidence.

TRIBUNALS

• Direct Taxation

ITAT DELHI 'I' BENCH

Lala Chet Ram Memorial Trust Vs. C.I.T (Decided on 23.09.2011) MANU/ID/0524/2011

Registration of charitable trust - Appeal filed Assessee against order of Commissioner of Income Tax refusing registration under Section 12AA(1)(b)(ii) of Income Tax Act, 1961 and refusing approval under Section 80G(5) of Act

Held, The Indian Trust Act, 1882 is the law relating to private trust and trustees only. However, the public charitable trusts are formed under general law with guidance drawn from Trust Act, 1882. In present case, trust deed was drawn on 6.11.2008. Thus application for registration should have made under Section 12A 9aa) of Income Tax Act

ITAT MUMBAI 'G' BENCH

Assistant Commissioner of Income Tax Vs. Lona Insurance (Decided on 23.09.2011) MANU/IU/0973/2011

Cancellation of penalty - Appeal preferred by Revenue against order of Commissioner of Income Tax (C.I.T) whereby he cancelled the penalty of Rs.8,87, 055 imposed by Assessing Officer under Section 271(1)(c) of Income Tax Act, 1961

Held, It was well-settled that where additions were based on estimate without anything positive to support the inference of concealment, penalty under Section 271(1)(c) could not be imposed. In case of Reliance Petro Products Ltd, it was held that making an incorrect claim in law could not tantamount to furnishing inaccurate particulars and merely because Assessee's claim for deduction which had not been accepted by Revenue, penalty under Section 271(1)(c) was not attracted. Keeping in view this decision of Apex Court, this Court was of the view that it was not a fit case to impose penalty under Section 271(1)(c). Hence, appeal of Revenue was dismissed.