[No.199]

Supreme Court

• Ajay Singh Vs. State of Maharashtra

Appellant-accused was convicted of offence under Section 302 of IPC for murder of his wife by setting her on fire. Trial Court found accused guilty on ground that there was extra judicial confession made before PWs 1, 3 and 4 and that kerosene was found on the dress which the accused was wearing at the time of occurrence. On appeal, High Court concurred with the conclusions of the trial court. Hence, present appeal. Whether the alleged extra judicial confession by appellant can be relied upon? Held, while dealing with a stand of extra judicial confession, Court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is for the Court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied confession was voluntary basing on such evidence, conviction can be founded. Such confession should be clear, specific and unambiguous. The evidence of PWs 1, 3 and 4 is not consistent as to where the accused is supposed to have made the statement. While PW-1 said that he was inside the house, interestingly PW-3 stated that accused did not come out of the house and thereafter he did not utter a statement which is taken to be the extra judicial confession. So far as PW-4 is concerned the trial Court had disbelieved his evidence. It would, therefore, be not safe to place any reliance on the so called extra judicial confession.

• Ashok Pandey V. K. Mayawati and Ors.

Petitioner challenged the appointment of respondents as Chief Minister and Minister of Uttar Pradesh on the ground that respondents are not qualified to be appointed as Chief Minister and Minister as they were members of the Rajya Sabha and thus disqualified under Article 164(4) read with Article 164(1) of the Constitution. Petitioner contended that since respondents were already members of the Rajya Sabha when they were appointed as Chief Minister and Minister the requirement of their being elected to the State Legislative Assembly within a period of 6 months does not apply to them as they were already legislators of the Rajya Sabha. Hence, present petition. Whether non-legislators are eligible to be appointed as Chief Ministers or Ministers? Held, the absence of the expression 'from amongst members of the Legislature' in Article 164(1) is indicative of the position that whereas under that provision a non-legislator can be appointed as a Chief Minister or a Minister but that appointment would be governed by Article 164(4), which places a restriction on such a non-member to continue as a Minister or the Chief Minister, as the case may be, unless he can get himself elected to the Legislature within the period of six consecutive months from the date of his appointment. Therefore, petition is dismissed.

High Courts

Bombay

• Dr. Narayan Keshaorao Puranik, Resident of Tahasil and Distt. Yavatmal v. State of Maharashtra, through Secretary, Public Health Department, Mantralaya, Mumbai and Anr.

Petitioner working for respondent No. 1 decided to seek voluntary retirement from the services of Respondent No. 1 and therefore, issued a notice of voluntary retirement to the appointing authority through his immediate superior officer. Thereafter, petitioner received a letter from Respondent No. 2 informing petitioner that the proposal for voluntary retirement was rejected by Respondent No. 1 with no reasons. Petitioner then preferred an application before the Maharashtra Administrative Tribunal which held that the notice of retirement is not in consonance and compliance of the provisions of Rule 66 of Pension Rules as though the notice was addressed to the appointing authority, it was delivered to the immediate Superior Officer and thus the competent authority did not have clear three months from the notice and therefore, rejected O.A. filed by the petitioner. Hence, present petition. Whether notice of three months contemplated by Rule 66 should be “clear” notice of three months to the appointing authority and whether three months should be counted from the date of notice actually reaches the competent authority and or when the notice is submitted to immediate superior? The Tribunal has tried to read into Rule 66, the word “clear 3 months notice to the appointing authority”, which is not the scheme of the said rule. Inclusion of such text and importing said interpretation would amount to infusing or adding words presence whereof cannot be felt by adverting to the scheme i.e. surrounding rules. Absence of words “clear 90 days notice (3 months) to appointing authority” is in a legislative act of omission done with all legislative wisdom, which is liable to be classified as conscious omission, and should be respected. Construction of provisions for reading the strictness of clear 90 days notice as done by the Tribunal is, therefore, reading in the provision of law, a non existing text, and such reading is not a necessity for advancement of the cause and objects underlying provisions. Had it been the intent of the rule making authority, omission which is now sought to be filled in the MAT, would not have been left in the said state. We, therefore, disapprove the interpretation reached by the MAT, and hold that the submission of the notice to the immediate superior officer though addressed to the appointing authority is sufficient compliance, and the period of 90 days shall be counted from the date of submission of notice to immediate superior — Petition allowed.

• Reliance Energy Ltd. v. MSRDC Ltd. and Ors.

Respondents invited tenders for building a sea link in Mumbai. Accordingly first respondent invited pre-qualification bids to ascertain as to which Bidder was financially and technically qualified to participate in the second stage of the tender process. Petitioners submitted application but their application was rejected. Petitioners challenged said decision of respondent as arbitrary and irrational. Hence, present petition. Whether the decision to deny participation to the petitioners at the threshold can be termed as arbitrary, irrational and unreasonable? Held, this is a case where authorities who are to work out a mega project, have taken a final decision, taking into account all pros and cons and the responsibility and burden that the Agency or person implementing the same will have to share. Therefore, if it chooses to be cautious at the threshold itself does not mean that the decision is liable to be set aside. M/s. Crisil’s views were placed before the decision making authority. It is an Authority, consisting of a High Powered Official. It takes into account the divergent views and arrives at a conscious decision not to accept the Petitioner’s Bid. No mala fides are attributed to it. Under the tender conditions, it was fully empowered to take the final decision. If it is of a bona fide opinion that it would not be safe to allow the petitioners to participate further then, in judicial review, we would not substitute our views. Same standards of judicial review are applicable at the threshold. In making a contract as well as its implementation, the same principles and same tests have been applied by the Supreme Court. It does not mean that at the threshold no bidder can be thrown out. Once the terms and conditions are accepted by parties, then, merely because the bid has not been processed further cannot be a grievance. Therefore, petitioners do not deserve any opportunity to have their Consortium bid considered further. Petition fails.

SEBI

SMD

• Supervision of branches of depository participants

Circular No: MIRSD/DPS III//Cir-9/07 Dated 03.07.2007: Vide the above circular SEBI notifies that it has come to SEBI's notice that the Depository Participants (DPs) are operating through branch offices which are having Depository Participant Modules (DPMs) directly linked to the Depository server and branch offices which are connected through back offices software of the DP. Certain DPs are connected with the Depository through one or more DPMs. Some of the DPs have offline branches which function either as full fledged braches offering all DP services or only as collection centre. In terms of Regulation 46 of the SEBI (Depositories and Participants) Regulations, 1996, every DP shall have adequate mechanism for the purpose of reviewing, monitoring and evaluating its internal accounting controls and systems. Further, clause 19 of the Code of Conduct for Participants contained in the Third Schedule to the Regulations inter alia states that the DP shall ensure that it has satisfactory internal control procedure in place. SEBI clarifies that these provisions apply to DPs in respect of all their branches also. DPs are therefore required in terms of these provisions to put in place appropriate mechanisms to ensure that their branches are carrying on the operations in compliance with the applicable regulations, bye-laws, etc. Further, DPs are also required to put in place suitable internal control systems to ensure that all branches are exercising due diligence in opening accounts, complying with KYC requirements, in ensuring systems safety in complying with client instructions, manner of uploading client instructions, in verifying signatures and in maintaining client records, etc. DPs shall also ensure that the branches are suitably integrated. The DPs whose systems do not measure up to the above are hereby advised to ensure such compliance immediately. 

Ministry of Environment and Forests

• Constitution of the State Level Environment Impact Assessment Authority, Gujarat

Notification No. SO948(E) Dated 12.06.2007: The Ministry of Environment and Forests notifies that in exercise of the powers conferred by sub-section (3) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) and in pursuance of the Government of India notification number S.O. 1533(E) dated the 14th September, 2006, the Central Government has constituted the State Level Environment Impact Assessment Authority (SEIAA), Gujarat comprising of three members namely, Chairman, Member and Member Secretary nominated by the State Government of Gujarat. Accordingly, the Chairman and Members shall have the term of three years from the date of publication of this notification in the Official Gazette. The Authority, Gujarat shall have base its decision on the recommendations of the State Level Expert Appraisal Committee (SEAC) constituted for the State of Gujarat in this order. The State Government of Gujarat shall notify the agency to act as secretariat for the Authority and shall provide all financial and logistic support including accommodation, transportation and such other facilities in respect of all its statutory functions, Sitting fee, Travelling Allowance/Dearness Allowance to the Chairman and Member of the Authority shall be paid by the State Government of Gujarat as per State rules. Further, to assist the said Authority, the Central Government, in consultation with the State Government of Gujarat shall constitute the State Level Expert Appraisal Committee, Gujarat.

Ministry of Rural Development

• Appointed Date for Enforcement of the National Rural Employment Guarantee Act in the Specified Area

Notification No. SO943(E) Date of Publication 11.06.2007: The Ministry of Rural Development notifies that in exercise of the powers conferred by sub-section (3) of Section 1 of the National Rural Employment Guarantee Act, 2005 read with Section 2(2) of the National Rural Employment Guarantee (Extension to Jammu & Kashmir) Act, 2007, the Central Government has appointed the 6th day of June, 2007, as the date on which the said Act shall come into force in the different areas of the State of Jammu and Kashmir.

Ministry of Overseas Indian Affairs

• Prohibiting Emigration of Indian Citizens for going to Iraq

Notification No. SO690(E) Dated 01.05.2007: The Ministry of Overseas Indian Affairs notifies that in exercise of the powers conferred by Sub-section (1) of Section 31 of the Emigration Act, 1983, the Central Government, in view of the deteriorating security situation, prevailing civil commotion and political disturbances in Iraq, has prohibited emigration of Indian citizens for going to Iraq. The above notification shall be effective for a period of six months from the date of its publication in the Official Gazette.

Telecom Regulatory Authority of India (TRAI)

Press Release

• TRAI Issues Clarification on "Publication of Telephone Directory"

Press Release No. 63/2007 Dated 04.07.2007: TRAI notifies that an English newspaper has published a news item regarding the intention of Telecom Regulatory Authority of India (TRAI) to bring out a directory of all telephone numbers. TRAI vide the above press release clarifies that TRAI does not collect any information relating to telephone numbers either mobile or landline of the subscribers and has no plans or intentions to publish directory of telephone numbers of the subscribers. TRAI had sent a recommendation on "Publication of Telephone Directory and Directory Enquiry Services" to the Government on 5th May 2005 wherein it has recommended that "the cellular mobile directory should contain entries of only those customers who have explicitly given their consent. Pre-paid customers shall be excluded from the printed directory."

Cases

• Ford Motor Company, v. Mustangs Unlimited, Inc.,

Defendant-Appellant appeals the district court’s order granting Plaintiff-Appellee motion to set aside a consent judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). The consent judgement was entered into between parties as a voluntary settlement of a federal action brought by plaintiff in which plaintiff alleged that defendant had committed trademark counterfeiting, trademark infringement, trademark dilution, and unfair competition in violation of the Trademark Act of 1946. The consent judgment, permanently enjoined defendant from advertising, marketing, distributing, using, selling and/or offering to sell any merchandise bearing the FORD name and marks which has been purchased or otherwise obtained from any entity which is not licensed by plaintiff to distribute or sell such merchandise. Thereafter, plaintiff moved in the district court to have the judgment set aside pursuant to Federal Rule of Civil Procedure 60(b)(6), claiming that defendant had breached the terms of the judgment by continuing to sell automobile accessories and other merchandise bearing the Ford Trademarks. The district court granted Ford’s motion and vacated the consent judgment. Defendant challenged same on ground that district court abused its discretion by failing to apply the proper standard namely, a requirement of showing “extraordinary” or “exceptional” circumstances to plaintiff’s Rule 60(b)(6) motion. Hence, present appeal. Held, Courts must apply subsection (b)(6) only as a means to achieve substantial justice when something more than one of the grounds contained in Rule 60(b)’s first five clauses is present. Several circuit courts have held that a breach of a settlement agreement does not constitute an exceptional or extraordinary circumstance warranting relief under Rule 60(b)(6). The record provides no basis to show that the district court acted within its discretion in granting relief from judgment. Therefore, judgement of lower court vacated and matter remanded to lower court. 

• Country Mutual Insurance Company v. Livorsi marine, inc.

Defendants 1 and 2 are policy holders of commercial general liability insurance policies with plaintiff Insurance Company. Defendant No. 2 brought suit against defendant No. 1 in the United States District Court for the Northern District of Illinois alleging various trademark violations related to the use of its trade name. The language of both defendants’ insurance policies gives plaintiff insurance company the duty to defend and indemnify its insured in any lawsuit seeking damages based on an advertising injury. Although both defendants filed their lawsuits, neither party informed plaintiff insurance company of the suit until very late. Plaintiff-insurance company then filed a complaint for declaratory judgment in the circuit court and sought a judgment that it had no obligation to defend or indemnify either defendants in connection with the trademark lawsuit. It argued that the claims raised in the lawsuit did not fit the policy’s definition of advertising injury and that both defendants breached the notice condition of their policies by failing to inform the plaintiff of the lawsuits for more than 20 months. Circuit court entered a judgment in favor of plaintiff holding that defendants failed to give notice within required time to plaintiff to which it was entitled. Hence, present appeal. Held, when construing the language of an insurance policy, a court is to ascertain and give effect to the intentions of the parties as expressed by the words of the policy. An insurance policy must be construed as a whole, giving effect to every provision. Once it is determined that the insurer did not receive reasonable notice of an occurrence or a lawsuit, the policyholder may not recover under the policy, regardless of whether the lack of reasonable notice prejudiced the insurer. Therefore, circuit court applied the appropriate rule in this case. Judgement of Lower Court affirmed.

News

• New Jersey governor signs legislation to reduce greenhouse gas emissions

New Jersey Governor, Jon Corzine, signed legislation to cut emissions of greenhouse gases; making New Jersey the third state in the nation to pass such laws to prevent global warming. California and Hawaii have passed similar laws. New Jersey's Global Warming Response Act requires the state to reduce greenhouse gas emissions to 1990 levels by 2020 and by 80 percent below 2006 levels by 2050. New Jersey is the first state to set targets so far into the future. Earlier in the month, the US Supreme Court ruled in Massachusetts v. EPA that the Environmental Protection Agency may regulate automobile emissions.

• US Army officer opposing Iraq war can be court-martialed again: military judge

A US military judge ruled that the refiling of charges in the court-martial of an US Army Officer 1st Lt. Ehren Watada after a February mistrial does not constitute double jeopardy and will not violate Watada's Fifth Amendment right. Watada, who is the first commissioned officer in the US military publicly refused to deploy to Iraq in June 2006 and is charged with four counts of conduct unbecoming an officer and one count of missing movements. The officer refused to be classified as a conscientious objector because he said he does not object to war in general but just to the "illegal" war in Iraq. He offered to serve in Afghanistan, but the US Army refused. 

• Russia lower house approves expanded anti-extremism law

The Duma, the lower house of the Russian parliament, approved legislative amendments to change the prevailing definition of extremist crime in Russian law to include activities taken for "political or ideological hatred." Opponents of the legislation criticized the amendments as an attempt to curtail civil liberties and hamper democracy by putting restraints on media coverage and discouraging opposition campaigning. Russian parliamentarians defended the measure as necessary to prevent terrorism. Under the new amendments, public disturbances "committed for ideological, political or racial motives" are punishable by a prison term of eight years. "Calls to extremism" can be punished by six years in prison. The new amendments will also grant the police additional wire-tapping powers. They now go to Russia's upper house, the Federation Council.

• Chinese former drug safety official sentenced to death for corruption

The Beijing No. 1 Intermediate People's Court convicted former Pharmaceutical Registration Department Director Cao Wenzhuan of corruption and dereliction of duty for receiving approximately $316,000 in bribes from two pharmaceutical companies in exchange for certifying substandard drugs at the State Food and Drug Administration. The court sentenced Cao to death on both counts, stripped him of all political rights, and confiscated all of his personal property. The court said the harsh sentence was warranted given Cao's high stature, the enormous bribes involved, and Cao's refusal to confess or return the bribes received. The court did grant Cao a two-year reprieve for his execution, finding that he had provided information that aided in the investigation of other corruption cases.

• South Dakota to execute first prisoner under new protocols

South Dakota is preparing to hold its first execution in 60 years next week. The execution was halted last year by Governor Mike Rounds but the passage of new lethal injection protocols in February cleared up the legal concerns that led to its suspension. While the former law, written in 1984, specified a particular two-drug mixture, February's legislation is much broader, allowing the prison warden the ability to select any lethal injection mixture, subject to the approval of the Secretary of Corrections. The Governor had feared that the state would open itself up to legal liability if it instead used the three-drug cocktail that has become the standard for lethal injections around the country, and has recently been the subject of numerous constitutional challenges.