SUPREME COURT

• CRIMINAL

Kashiben Chhaganbhai Koli Vs.State of Gujarat (Decided on 04.12.2008)

Mischief causing damage to the amount of fifty rupees - Punishments for offences of atrocities - Appellant-original accused owner of one agricultural land agreed to sell the land to the complainant - Upon payment, the appellant had handed over possession of the land to Complainant - Complainant cultivated sugarcane crop on the land - Appellant illegally and forcibly entered the land in question, tilled the land with the help of tractors and thereby committed substantial loss of crop to the complainant - Whether appellant has committed offence punishable under Section 427 of Indian Penal Code, 1860 and Sections 3(i)(iv) and 3(i)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 of which appellant was held guilty

Section 3(i)(v) of the Atrocities Act makes punishable any wrongful dispossession of any members of Scheduled Castes or Scheduled Tribes from his land or premises or interference with the enjoyment of his rights over his land, premises or water. PWs. 1, 2 and 3 have proved that the accused had not only interfered with the possession and enjoyment of the claimant over the land, but also damaged the crops thereon. Therefore, the High Court was justified in holding the accused guilty of offence punishable under Section 3(i)(v) of the Act. So far as Section 427 is concerned, the expression "mischief" has been defined in Section 425 IPC to mean an act done with intent to cause or knowing that it is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property etc. In the instant case the evidence on record clearly establishes that the sugarcane stems in the fields of the claimants were totally destroyed by using a tractor. Therefore, Section 427 IPC is clearly established. The sentence imposed suffers from no infirmity to warrant interference. The appeal is dismissed.

Prabhu Vs.State of Madhya Pradesh (Decided on 03.12.2008)

Voluntarily causing grievous hurt by dangerous weapons - Accused-Appellant armed with a sharp instrument and lathis administered several blows with their respective weapons and caused severe injuries to the deceased and thereafter ran away towards the jungle - Whether the weapon was a dangerous or deadly weapon or not, that would determine under Section 325 or Section 326 of Indian Penal Code, 1860

Section 326 provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and also with a liability to pay a fine. Sections 325 and 326, like the two Sections immediately preceding, provide the ordinary punishment and punishment under certain aggravating circumstances of the offences mentioned thereunder. The two latter Sections apply to the case of causing "grievous hurt" and the immediately preceding two Sections to the case of `hurt'.

The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are, (1) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. As was noted in State of U.P. v. Indrajeet Alias Sukhatha MANU/SC/0529/2000 Supreme Court held that, there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. Considering the principles set out above, certainly the appellant was guilty of offence punishable under Section 326 read with Section 34 IPC. However, in the peculiar facts of the case, the sentence of 5 years rigorous imprisonment would meet the ends of justice. Appeal is allowed.

Rajendran and Anr.Vs.State Asstt. Commnr. of Police Law and Order (Decided on 02.12.2008)

Presumption as to dowry death - Husband or relative of husband of a woman subjecting her to cruelty - Deceased committed suicide by setting fire on herself after pouring kerosene since there was torture at the hands of the appellants/husband - Whether cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman were required to be established in order to bring home the application of Section 498A Indian Penal Code, 1860

Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1872 (in short `Evidence Act') have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. The Explanation to Section 498A gives the meaning of `cruelty'.Under Section 304B it is `dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

Section 498A IPC has two limbs. The first limb of Section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. `Cruelty' has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation has definite application to the facts of the present case. Additionally, effect of Section 113A of the Indian Evidence Act cannot be lost sight of. Further as per Section 113A of the Evidence Act when the question as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband. This has not been rebutted by the appellants. Above being the position we find no merit in these appeals, which are accordingly dismissed.

Chaman and Anr.Vs.State of Uttaranchal (Decided on 01.12.2008)

Acts done by several persons in furtherance of common intention - Whether direct or circumstantial, that the plan or meeting of mind of all the accused persons to commit the offence for which they were charged with the aid of Section 34 of Indian Penal Code, 1860 be pre-arranged or on the spur of moment

The true contents of the Section 34 are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. In Ashok Kumar v. State of Punjab MANU/SC/0089/1976, Supreme Court observed that the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. Section 34 was in the following terms, when a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone. The Section does not say, "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. When the factual scenario is considered in the background of legal position, there is no merit in this appeal. Appeal is dismissed.

• TRUSTS AND SOCIETIES

Shri Arun B. Khanjire Vs.The Ichalkaranji Urban Co-op. Bank Ltd. and Ors. (Decided on 03.12.2008)

Revisionary powers of State Government and Registrar - Whether Section 154 of Maharashtra Co-operative Societies Act, 1960 which empowers the State Government and the Registrar, either suo-motu or on application, to call for and examine the records of an inquiry or proceedings of any matter becomes necessary to do so, after giving the person affected an opportunity of being heard

Section 154(1) of the above Act confers revisionary powers on the State Government and also the Registrar of Co-operative Societies under the Act. It also empowers the State Government or the Registrar to satisfy themselves as to the legality or the proprietary of any such decision or order and to modify, annul or reverse the same after giving the person affected thereby an opportunity of being heard either suo motu or on an application.

We are unable to accept that the proceedings had been commenced suo-motu, since an application had been made by the petitioner to the officer concerned in which all the facts relating to the appeal had been set out. Although, the same was not in the form of a formal Memorandum of Appeal it served the purpose of the appeal without compliance with the provisions of Sub-section (2A) which required deposit of 50% of the recoverable dues. In fact, the petitioner resorted to an innovative procedure in order to avoid the pre-condition of payment of 50% of recoverable dues as stipulated under Sub-section (2A) of Section 154 of the above Act. The matter was not taken up suo-motu by the Divisional Joint Registrar, but on the basis of the application which had been filed by the petitioner here, though not in the form of a Memorandum of Appeal, and that while an appeal may be filed within the period of limitation prescribed, it could not be entertained or taken up for hearing before the pre-condition indicated in Sub-section (2A) had been complied with, which view is supported by the decisions referred to hereinabove. We, therefore, see no reason to entertain the Special Leave Petition which is accordingly dismissed.

• SERVICE

K.A. Ansari and Anr. Vs.Indian Airlines Ltd. (Decided on 28.11.2008)

Appellant moved a miscellaneous application seeking a direction to the Respondent - Indian Airlines to place him in a ground job in the equivalent pay scale of Deputy Manager - Whether the miscellaneous application preferred by the Appellant could be said to be founded on a fresh cause of action

Miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open (1987) 2 SCC 179 to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It is manifest that in direction No. (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued.' The respondent - Indian Airlines was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear; it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non- implementation. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 23rd April, 2003, was issued. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition. Appeal is allowed.

HIGH COURT

• COMPANY

DELHI HIGH COURT

In Re : Saraf Paper Mills Ltd (In Liquidation) through Official Liquidator (Decided on 25.11.2008) MANU/DE/1675/2008

Winding up - Judgment debtor assailing the auction sale on grounds of material irregularity - Faud in conducting the auction sale - Whether it is the Court which conducts the sale and whether it is its duty to apply its mind to the material factors bearing on the reasonableness of the price offered.

The expression `material irregularity in the conduct of the sale' must be benignantly construed to cover the climax act of the Court accepting the highest bid. Under the provisions of Civil Procedure Code, it is the Court which conducts the sale and its duty to apply its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity.

• DIRECT TAXATION

BOMBAY HIGH COURT

Vodafone International Holdings B.V., a company incorporated under the provisions of the Companies Act Vs. Union of India (UOI), Ministry of Finance and Asstt. Director of Income Tax (International Taxation) (Decided on 03.12.2008) MANU/MH/1147/2008

Income Tax Act, 1961 - Section 195 - Territorial Application- Whether the definitions of a "subject matter" of taxation, under provisions of section 195, can be attracted here to avoid paying tax by a foreign company.

Held, that in interpreting a taxing statute, there is no place for equitable considerations.Taxing statutes cannot be interpreted on any presumptions or assumptions. The Court has to look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed. It cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.

Legal fiction - What are the statutory definitions of a legal person/entity under the provisions of Section 194 and 201.

A person who fails to deduct or withhold tax and who is not the assessee can be made liable for the tax only by a legal fiction, a legal fiction that deems the payer to be an assessee in default when he is not. Such a legal fiction must be construed strictly and be applied to only such persons as are specifically mentioned and no others.

• PROPERTY

DELHI HIGH COURT

Larsen and Toubro Vs. Puri Construction Limited and Ors. (Decided on  26.11.2008) MANU/DE/1676/2008

Arbitration and Conciliation Act, 1996 - Contract Act - Breach of Contract - Issue raised by Puri Construction Limited ( in short PCL) that Larsen and Turbo ( in short L and T) had deliberately not placed on record reports of consultant under which advice it had decided to exit from real estate business. Whether at such stage the court can entertain such claims.

Held, that if Larsen and Turbo had committed breach, whether there was a report supporting the breach or not, is immaterial. As a business entity LandT had a right to consult any professional and it was not obligatory on LandT to produce before the Tribunal such professional advice. What was material for the Tribunal and for that matter for the Court, is to consider the actions of LandT and not to see what was the advice behind such actions. Therefore, whatever advice had been given to LandT, the Court and the Tribunal were only concerned with the actions of the LandT and not with the advice behind the actions. No adverse inference can be drawn against LandT for not producing the report.

• ARBITRATION

 DELHI HIGH COURT

Glencore Grain Rotterdam B.V. Vs. Shivnath Rai Harnarain (India) Co. (Decided on 27.11.2008) MANU/DE/1679/2008

Arbitration and Conciliation Act, 1996 - Binding nature of an arbitration award - Enforcement of such award - Where specific reference was made on the question of jurisdiction to the arbitrator - respondent participated and made its submissions before the arbitrator - Can either party after announcement of award question upon the enforcement of the same.

Held, that where a specific question of law is submitted to the arbitrator and the arbitrator answers the same, in such a case the decision being of an arbitrator selected by the parties to adjudicate upon their disputes, binds the parties even on a question of law.

• INTELLECTUAL PROPERTY RIGHTS

HIGH COURT OF DELHI

Ram Krishan and Sons Charitable Trust Ltd. Vs. IILM Business School (Decided on 26.11.2008) MANU/DE/1678/2008

Whether any appellate court would normally be justified in interfering with the exercise of discretion under appeal solely on the ground that had it considered the matter at the trial stage it would have come to a contrary conclusion.

Held, that the grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions.

• CIVIL

HIGH COURT OF DELHI

K.D. Sharma and Ors. Vs. B.M. Dhaul, Chief Engineer (Retd.), Delhi Jal Board, Mr. Arun Mathur, Chief Executive Officer, Delhi Jal Board, Mr. R.K. Jain, Chief Engineer (Drainage), Delhi Jal Board and Mr. P. Pant, Executive Engineer (C) DR-XV, Delhi Jal Board (Decided on 25.11.2008) MANU/DE/1674/2008

Contempt Petition - Sewage and sullage still flowing in the storm water drain - Willful and intentional disobedience of the order of the Trial Court on the part of the Respondent - Whether it is a case of re-occurrence of flow of sewage in the storm water drain or wilful disobedience

The Court is not interested to know the excuses for which the order could not be executed. No excuses can undo the damage being caused by administration by non-stoppage of flow of sewer and sullage into the storm water drain and then into Yamuna, despite an undertaking given to the Court about 2' years back, therefore, the respondents were held liable for Contempt of Court.

• CRIMINAL

HIGH COURT OF ALLAHABAD

Gopi Singh Vs. State of U.P. and Babu Khan (Decided on 21.11.2008) MANU/UP/0825/2008

FIR was lodged by the Revisionist - After investigation, the police submitted final report which was rejected by the Addl. Chief Judicial Magistrate - Order for re-investigation under the provisions of Section 173(8) Cr.P.C. passed by the same - Whether magistrate has power to pass order for further investigation.

Police has no right of fresh investigation or re-investigation and instead of fresh investigation, there can be further investigation, if required. The Magistrate is fully empowered under Section 156(3) Cr.P.C. to pass the order for further investigation on the final report. The power of the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the Investigating Officer to further investigate the case even after submission of his report vide Section 173(8). Hence, the Magistrate can order re-opening of the investigation even after the police submits the final report.

• SERVICE

HIGH COURT OF DELHI

Ex. Ct. Raj Kumar Vs. Union of India (UOI) (Decided on 21.11.2008) MANU/DE/1655/2008

The Appellant dismissed from his services due to negligence in discharge of his duties - Section 40 of the Border Security Force Act, 1968 - The specific charge is that without any authority, the Appellant allowed 25 to 30 cattle heads to cross from the Indian side of the border towards Bangladesh - Appeal filed by the Appellant but the same was rejected - Writ Petition filed by the Appellant - Whether the Appellant guilty of violating provisions of Section 40

Section 40 talks of a criminal offence which is punishable with imprisonment and that, except to the extent indicated to the contrary elsewhere in the BSF Act the Indian Evidence Act applies to all trials. The provision of Section 40 is widely worded to include any act 'prejudicial to good order of the Force' and the trial is to be held by a Summary Security Force Court constituted in terms of Section 64 of the BSF Act. The evidence must show that it was the Appellant who allowed the crossing of cattle from the Indian side to the Bangladesh side and there is no such evidence on record to show that the Appellant allowed the crossing of cattle and therefore, the Appellant was reinstated in service and the appeal was allowed.