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SUPREME COURT OF INDIA
CRIMINAL LAW
Santosh
Kumar Singh v. State through CBI (Decided On: 06.10.2010)
Conviction
Offence committed punishable under Sections 376 and 302 of the Indian Penal
Code, 1860 Question of sentence Whether death sentence or life sentence
be awarded Application of principle or rarest of rare case
Held,
undoubtedly the sentencing part is a difficult one and often exercises the mind
of the Court but where the option is between a life sentence and a death
sentence, the options are indeed extremely limited and if the court itself feels
some difficulty in awarding one or the other, it is only appropriate that the
lesser sentence should be awarded. This is the underlying philosophy behind `the
rarest of the rare' principle. Furthermore, the mitigating circumstances need to
be taken into account in the instant case, more particularly that the High Court
has reversed a judgment of acquittal based on circumstantial evidence, the
Appellant was a young man of 24 at the time of the incident and, after
acquittal, had got married and was the father of a girl child.
Undoubtedly,
also the Appellant would have had time for reflection over the events of the
last fifteen years, and to ponder over the predicament that he now faces, the
reality that his father died a year after his conviction and the prospect of a
dismal future for his young family. On the contrary, there is nothing to suggest
that he would not be capable of reform. There are extremely aggravating
circumstances as well. In particular, the tendency of parents to be over
indulgent to their progeny often resulting in the most horrendous of situations.
These situations are exacerbated when an accused belongs to a category with
unlimited power or pelf or even more dangerously, a volatile and heady cocktail
of the two.
The
reality that such a class does exist is for all to see and is evidenced by
regular and alarming incidents such as the present one. Ends of justice would be
met if the sentence awarded to him is commuted from death to life imprisonment
under Section 302 of the Indian Penal Code and the other part of the sentence
being retained as it is with this modification in the sentence.
State
of Maharashtra v. Abu Salem Abdul Kayyum Ansari and Ors. ( Decided On:
05.10.2010)
Right
to cross examine an accomplice Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 Whether the accused has a right
to cross examine an accomplice who has been tendered in evidence by the
prosecution as approver but later on pardon tendered to him was withdrawn on a
certificate of the Public Prosecutor under Section 308 of the Code of Criminal
Procedure, 1973 and he (approver) has not been further examined by the
prosecution as its witness.
Held,
pardon granted to an accomplice under Section 306 or 307 Cr.P.C. protects him
from prosecution and he becomes witness for prosecution but on forfeiture of
such pardon, he is relegated to the position of an accused and his evidence is
rendered useless for the purposes of the trial of the co-accused. He cannot be
compelled to be a witness. There is no question of such person being further
examined for the prosecution and, therefore, no occasion arises for the defense
to cross examine him. The Designated Court seriously erred in treating the
respondent No. 3 in the instant case hostile witness; it failed to consider that
the pardon granted and accepted by him was conditional pardon inasmuch as it was
on the condition of his making a true and full disclosure of all the facts
concerning the commission of crime and once the pardon granted to him stood
forfeited, on the certificate issued by the Special Public Prosecutor, he was
relegated to the position of an accused and did not remain a witness. In the
circumstances, there was no justification to permit the defense to cross examine
the Respondent No. 3 and to that extent the impugned order cannot be sustained.
Hence, Appeal allowed.
CONSTITUTION LAWS
State
of Uttaranchal v. Sandeep Kumar Singh and Ors. (Decided On: 07.10.2010)
MANU/SC/0806/2010
Order
of Termination - Quashing thereof - Interpretation of Article 341 as well as
Article 342 of the Constitution Whether a person belonging to a scheduled
caste in relation to a particular State would be entitled or not, to the
benefits or concessions allowed to scheduled caste candidate in the matter of
employment.
Held,
A very important question of law as to interpretation of Articles 16(4), 341 and
342 arises for consideration in this appeal. Whether Presidential Order issued
under Article 341(1) or Article 342(1) of the Constitution has any bearing on
the State's action in making provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State? The extent
and nature of interplay and interaction among Articles 16(4), 341(1) and 342(1)
of the Constitution was required to be resolved. This case has to placed before
the Hon'ble the Chief Justice of India for constituting a Bench of appropriate
strength. The registry was directed to place the papers before the Hon'ble the
Chief Justice of India for appropriate directions.
COMMERCIAL LAWS
Indian
Railway Catering and Tourism Corporation Limited and Anr. v. Doshion Veolia
Water Solutions (P) Limited and Ors. ( Decided On: 04.10.2010)
Appeals
against the impugned judgment whereby Division Bench of the High Court quashed
the acceptance of the offer of Ion Exchange by IRCTC on the ground that the
offer of discount of 1% over the quoted price and the non-mentioning of excise
duty amount in rupees in the offer of Ion Exchange were contrary to the
provisions of the tender notification and the tender format Whether the
offer made was in breach of any essential term of the tender notification or the
tender format?
Held,
that as the offer of 1% discount on the quoted price and the non-mentioning of
excise duty amount in rupees in the bid of Ion Exchange were not in breach of
the essential terms of the tender documents, it was for IRCTC to evaluate the
valid offers of Ion Exchange and Doshion on the merits of the two offers. We
find that on the basis of recommendations of the Tender Committee, the Accepting
Authority of IRCTC found the offer of Ion Exchange at a net price of Rs.
18,47,34,000/- to be better than the offer of Doshion at the price of Rs.
18,66,00,000/- and that tax and duties including excise duty had no adverse
financial implications to IRCTC and accordingly accepted the offer of Ion
Exchange. By reversing this decision of the Accepting Authority of the IRCTC,
the Division Bench of the High Court, in our considered opinion, acted as an
Appellate Court and exceeded its power of judicial review in a matter relating
to award of contract contrary to the law laid down by this Court in the leading
case of Tata Cellular (supra).In the result, the impugned judgment and order of
the Division Bench of the High Court was set aside and the appeals of IRCTC and
Ion Exchange allowed and the appeal of Doshion was dismissed.
Shyam Telelink Ltd. now Sistema Shyam Teleservices Ltd. v. Union of India (Decided On: 05.10.2010) MANU/SC/0797/2010
Appeal against order passed by the Telecom Dispute Settlement and Appellate Tribunal Section 18(1) of the Telecom Regulatory Authority of India Act, 1997 Demand arising out of the agreement executed between the parties after it had unconditionally accepted the Migration Package under which it agreed to deposit without demur the outstanding licence fee as also the liquidated damages payable under the licence agreement Computation of liquidated damages for the delay in the commissioning of the service Whether the appellant was entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same?
Held, that the appellant was not entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same. The factual aspects apart we need to remember that the payment of liquidated damages was an essential condition of the Migration Package which was offered to the service providers. Unconditional acceptance of the package including the payment of outstanding licence fee with interest due thereon and liquidated damages was a specific requirement of the Migration Package which was unequivocally accepted by the appellant in terms of the declaration .The unconditional acceptance of the terms of the package and the benefit which the appellant derived under the same will estop the appellant from challenging the recovery of the dues under the package or the process of its determination. No dispute has been raised by the appellant and rightly so in regard to the payment of outstanding licence fee or the interest due thereon.. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the Migration Package. Allowing the appellant at this stage to question the demand raised under the Migration Package would amount to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. Hence, the appeal failed and was dismissed.
SERVICE LAWS
State of Haryana and Ors. v. Kashmir Singh and Anr. etc. etc. ( Decided On: 06.10.2010) MANU/SC/0800/2010
Transfer orders Challenge against thereto - Whether the Courts must ordinarily interfere in administrative matters?
Held, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. Also held that Judges must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive. Hence appeal succeeded and allowed.
EXCISE LAWS
Commissioner
of Central Excise, Visakhapatnam-II v. NCC Blue Water Products Ltd. (Decided On
24.09.2010) MANU/SC/0756/2010
Assessment
Duty Section 3, 11A, 11AB of the Central Excise Act, 1944 Assessee
company was engaged in the production of shrimps and tiger prawns As per the
Exim Policy (1st April 1992 to 31st March 1997), an EOU Aqua culture unit was
permitted to sell upto 50% of its production in value terms in DTA (Domestic
Tarif Area) Assessee sold shrimps and shrimp seeds in DTA but without
requisite permission from the Development Commissioner Whether the sales of
shrimps and shrimp seeds by the Assessee in DTA without requisite permission
from the Development Commissioner are to be assessed to Excise Duty under
Section 3(1) of the Act or under proviso to the said Section?
Held, that decision of the court in SIV Industries v. CCE 2000 (117) ELT 281 (SC) would apply to the facts of the present case Further, after the decision in SIV Industries case a Circular was issued by the CBEC clarifying that prior to 11th May 2001 the clearances from EOUs if not allowed to be sold in India shall continue to be chargeable to duty under main Section 3(1) of the Act. Therefore, in view of the dictum of this Court in SIV Industries and the Circular issued by the Board following the said decision the Excise Duty on such sales is chargeable under main Section 3(1) of the Act. Appeal dismissed.
HIGH
COURTS
CRIMINAL LAWS
DELHI
HIGH COURT
Veena
v. State (Decided On: 05.10.2010) MANU/DE/2627/2010
Rejection
of petitioners grant of parole Whether the Government was justified in
declining the parole to the petitioner merely because she had not completed one
year in jail?
Held,
that the Government was not justified. It would not be justified to decline
parole for the purpose of filing Special Leave Petition in Supreme Court merely
because petitioner has not spent one year in custody. This is not a case where
the convict is absconding and consequently remained in judicial custody for less
than one year. Here, the Court(s) in jail for less than one year on account of
the bail granted the petitioner to her. There is absolutely no logic behind
insisting upon the convict spending at least one year in judicial custody for
grant of parole to him/her, even for the purpose of filing Special Leave
Petition before the Supreme Court, which is the Constitutional right of every
Citizen of the Country including a convict. The order declining parole to her is
unjustified, irrational and arbitrary. The impugned Order set aside and the
petitioner is directed to be released on parole for a period of one month from
the date of her release, subject to the conditions to furnish a personal bond
and mark her presence in police station every Sunday and shall not visit any
place, outside Delhi.
COMMERCIAL LAW
DELHI
HIGH COURT
Roshan Lal Vohra and Sons and Anr. v. MCD and
Ors (Decided On: 01.10.2010) MANU/DE/2629/2010
Suspension
of the business of the petitioner and blacklisting him Reason sought by the
Petitioner that show cause notice has not been issued by the appropriate
authority and is liable to be struck down for this reason alone Show cause
notice issued by the Executive Engineer Whether the issuance of the show
cause notice been taken by the Additional Commissioner (Engineering) and by
Member Engineering-cum-Chief Engineer has authority?
Held,
there is no merit in the petition. The petition be dismissed in limine. It was
denied that the requisite Authority had not given the notice though from the
Circular it is clear that the same was with the consent of the Commissioner, MCD.
Whereas MCD states that the petitioner shall be communicated and given fresh
opportunity to file the reply. Hence, the Court in exercise of writ jurisdiction
should not interfere at the initial stage only and allow the proceedings to be
culminated and all objections taken at this preliminary stage can be taken if
remain aggrieved from the final decision.
BANKING LAWS
DELHI
HIGH COURT
Ishan
Systems Pvt. Ltd. v. Vijaya Bank and Ors. (Decided On: 01.10.2010)
MANU/DE/2630/2010
Securitization
Barred by laches Availability of alternative remedy Whether letter
in question to the petitioner for re-construction of the loan of the petitioner
valid?
Held,
the petitioner claims to have filed its objections to the notice dated 31st
October, 2009 however, inexplicably the petitioner has chosen not to file copy
thereof before this Court and has only quoted extracts there from in the
petition. However, the reply dated 30th November, 2009 of the Bank to the said
objections has been filed. In the said reply the respondent no.1 Bank has stated
that before issuance of the notice dated 31st October, 2009 under Section 13(2)
of the SARFAESI Act, many discussions had taken place with the petitioner and
the petitioner had been apprised of the Bank‟s contemplated action. The
Bank in this regard has also referred to its letters dated 27th June, 2009 and
13th October, 2009 and the failure of the petitioner to remit payment inspite
thereof. In fact the respondent no.1 Bank vide the said communication yet again
called upon the petitioner to pay `42,74,98,205.88 due as on 21st January, 2009
with future interest. This Court would ordinarily not interfere in the process
of securitization, the very object whereof is to curtail delays in the
realization of dues of the Bank. The petitioner in the present case has been
unable to make out a case. The petitioner is also barred by laches as aforesaid.
The counsel for the petitioner at this stage seeks a clarification that any
observations herein would not come in the way of the appeal which may be
preferred by the petitioner before the DRT, if so advised. It is clarified that
the observations aforesaid have been made in the context of the writ
jurisdiction and on the basis of the material placed before this Court.
ARBITRATION
BOMBAY
HIGH COURT
Harbhajan
Sarabjeet and v. Maharashtra Krishna Valley Development Corporation (through the
Executive Engineer) and The Executive Director Maharashtra Krishna Valley
Development Corporation (Decided On: 06.10.2010) MANU/MH/1196/2010
Arbitration
Application for appointment of Arbitrator-under Section 11 of the Arbitration
and Conciliation Act, 1996 Whether clause 30 is an arbitration agreement or
not?
Held,
that here are two ways of looking at clause 30. Read clause 30.1 derives its
colour from clauses 30.2 and 30.3. In other words clauses 30.2 and 30.3 indicate
that clause 30.1 is an arbitration agreement although clause 30.1 read by itself
does not constitute an arbitration agreement. The provision in clause 30.2 for
an appeal and the reference in clause 30.2 to the decision of the Superintending
Engineer in clause 30.1 being an order according to him supports his
submission.On the other hand it could be contended that once it is held that
clause 30.1 is not an arbitration agreement what follows in clauses 30.2 and
30.3 cannot constitute it to be one. Clauses 30.2 and 30.3 are the subsequent
steps which may be adopted by the contractor, in this case the petitioner, qua
the decision of the Superintending Engineer under clause 30.1. If clause 30.1 is
not an arbitration agreement, it is axiomatic that steps taken qua the decision
there under are only representations against the same. Orders are not
necessarily adjudicatory in nature.
Whether
the appointment of the Superintending Engineer as a sole arbitrator be allowed?
Held,
As the clauses in the case before me are almost identical to the clause in the
above case, I consider myself bound by the interpretation thereof
..Superintending Engineer, N.M.C., is appointed as Arbitrator in both matters as
per Clause 29(1) of the conditions of contracts between parties. Costs of Rs.
3000/- each payable to Applicants shall be added to the bill of costs in
arbitration proceedings. Superintending Engineer as the arbitrator in accordance
with clause 30.1 of the General Conditions of Contract, as a sole arbitrator.
CIVIL LAWS
BOMBAY
HIGH COURT
Sima
Hotels and Resorts Ltd. v. Dugal Projects Development Co. Pvt. Ltd. (Decided On:
06.10.2010) MANU/MH/1197/2010
Application
under Order VII, Rule 11 of the Code of Civil Procedure, 1908
Whether the case has merit case to exercise the revisional jurisdiction by this
Court against the order?
Held,
that the revision is liable to be allowed. In the application under Order VII,
Rule 11 of C.P.C., the petitioner had taken a plea that the suit filed was
barred by limitation. The learned Trial Judge has not even dealt with the said
aspect. Having taken the plea that the suit was barred by limitation, the
learned Trial Judge ought to have dealt with the same and given finding thereon.
On this sole ground, the impugned order is liable to be set aside. The court do
not deem it necessary to deal with the rival contentions of the parties on
merits since the matter is liable to be remanded to the learned Trial Judge for
fresh decision on the application filed under Order VII, Rule 11 of C.P.C. The
impugned order dated 25th May, 2010 passed by the Civil Judge, Senior Division,
Margao is quashed and set aside and the learned Trial Judge is directed to pass
reasoned order after hearingthe parties and dealing with all the contentions of
the rival parties, in accordance with law.
INSOLVENCY
BOMBAY
HIGH COURT
Basantkumar
Jain v. Rajesh S. Achharya (Decided On: 05.10.2010) MANU/MH/1198/2010
Adjudication
process in insolvency Substituted Petitioning Creditor seeks an order of
adjudication against the debtor Consideration for Whether an
insolvency petition is maintainable at the instance of a substituted creditor if
his claim is barred by limitation on the date on which he was substituted, even
if it was not barred by limitation on the date on which the act of insolvency
was completed.
Held,
that it is difficult to accept the submission that the judgment was based, not
on the fact that the claim of the substituted Petitioning Creditor was barred on
the date of the act of insolvency, but that it was barred prior thereto. Had
that been the case, the Division Bench would have noted whether the act of
insolvency was before 12th September, 1980 as the Division Bench had noted that
there was a letter dated 12th September, 1977 which would have constituted an
acknowledgment of liability extending the period of limitation three years
thereafter. Considering the importance of the question involved, the large scale
ramifications it has on the general body of creditors in several matters, I
would have done so had I been a member of a Division Bench. However, the
judgment in the case of Sunder v. Shreepad deals directly with the
question under consideration and I do not consider it appropriate sitting as a
single Judge not to follow it and instead to refer the matter to the learned
Chief Justice under Rule 28. This is despite the fact that the relevant
provisions of law were obviously not brought to the notice of the Division
Bench. The proper course would be to follow the judgment and leave it to the
parties to try and pursuade the Division Bench to make such a reference. In the
circumstances, the petition is dismissed. This order, however, is stayed upto
and including 31st December, 2010.
CONTEMPT OF COURT
GUJARAT HIGH COURT
Manubhai
Kodarlal Patel v. State of Gujarat through Krushi Panch Mamlatdar (Decided On:
01.10.2010) MANU/GJ/0743/2010
Contempt
of Court Petitioner seeks direction against respondent authority in
pursuance of the order passed by this Court in L.P.A. No. 912/1997 dated
06.10.1998 Whereby said appeal came to be partly allowed, by judgment and
whereby, the orders passed by the authorities below as also the Tribunal, were
quashed and set aside and the matter was remanded to the Mamlatdar concerned to
decide the issue in accordance with law Pursuant to the order petitioner
approached the Mamlatdar concerned by way of application dated 28.04.2010 No
decision has been taken on the said application preferred by the petitioner yet.
Hence, this petition Whether petitioner shall be at liberty to move to Court
by way of an application under the Contempt of Courts Act?
Held,
that by order dated 06.10.1998 passed by this Court in L.P.A. No. 912/1997, the
matter was remanded to the Mamlatdar concerned for decision afresh. It appeared
from the record that the authority concerned were sitting over the matter since
long and had not taken any decision yet. The matter has been hanging fire since
1998. In view of the above and in the interest of justice, it would be
appropriate that the Mamlatdar concerned decides the matter / application filed
by the petitioner afresh in accordance with law and as directed by this Court
vide order passed in L.P.A. No. 912/1997 dated 06.10.1998. Mamlatdar concerned
is directed to render its decision on the matter/application dated 28.04.2010
filed by the petitioner on or before 01st November, 2010 and to communicate the
same to the petitioner immediately thereafter. If no decision is taken by the
Mamlatdar concerned before the said date, the petitioner shall be at liberty to
move this Court by way of an application under the Contempt of Courts Act.
Consequently, the petition was allowed.