SUPREME COURT

• CRIMINAL LAWS

L.K. Venkat Vs. Union of India (UOI) and Ors. (Decided on 01.05.2012) MANU/SC/0371/2012

Transfer Petition - Whether the support extended by the political outfits and Ors. to those who were found guilty of killing a former Prime Minister may impede fair adjudication of the writ Petitions filed by them warrants transfer of the three writ petitions from the Madras High Court to the Apex Court?

Held, The question is of substantial general importance and decision thereof was likely to affect large number of persons who had been convicted by the competent Courts and sentenced to death and whose mercy petitions had remained pending for years together. Therefore, it would be in the interest of justice to transfer the three writ Petitions pending before the Madras High Court to this Court. Petitions allowed.

Arjun Vs. State of Maharashtra (Decided on 03.05.2012) MANU/SC/0373/2012

Conviction - Challenge thereto - Present Appeal filed against the order of conviction by the Additional Sessions Judge for an offence punishable under Sections 302 and 326 of the Indian Penal Code, 1860

Held, In the instant case, there was nothing to show that the deceased, his wife, his son or others had attacked Appellant, nor the surrounding circumstances would indicate that there was a reasonable apprehension that the death or grievous hurt was likely to be caused to the Appellant by them or others. The plea of private defence, therefore, had no basis and the same was rejected. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the Appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, it was held that this case fell under the fourth exception to Section 300 of IPC. Hence, it is just and proper to alter the conviction from Section 302 of IPC to Section 304 Part 1 of IPC. Appeal disposed of.

• SERVICE LAWS

Poonam Rani @ Poonam Vs. State of Haryana and Anr. (Decided on 01.05.2012) MANU/SC/0372/2012

Selection - Challenge thereto - Whether the Concerned Authority could destroy the answer sheets/papers of the written examination in violation of the policy decision taken and that whether the High Court committed an error by dismissing the writ Petition filed by the Appellant questioning the selection made by the Commission

Held, In the instant case, Single Judge and the Division Bench of the High Court did not pay serious attention to the blatant violation of the resolutions passed by the Concerned Authority on the issue of destruction of the record of the selection and erroneously assumed that in the absence of allegations of malafides against the particular officials / officers of the Commission, the Court was not required to go into the legality of their action to destroy the answer sheets within few days of declaration of the result of the selection. Further the OMR sheets produced for the first time before this Court could not be relied upon for recording a finding that the assessment of the candidates' performance in the written examination was transparent and fair. If the functionaries of the Commission were confident that the selection was not vitiated by any illegality, favouritism or nepotism then they should not have destroyed the answer sheets within few days of the declaration of the result. Appeal allowed

• ELECTION LAWS

Ishwardas Rohani Vs. Alok Mishra and Ors. (Decided on 03.05.2012) MANU/SC/0407/2012

Election - Challenge thereto - Respondent filed election Petition challenging election of Appellant on ground of corrupt practices as contemplated in Sub-sections (1)(A) and (B), (2), (6) and (7) of Section 123 of Representation of the People Act, 1951

Held, In the instant case, Judge was inclined to agree with the decision in F.A. Sapa and Ors. v. Singora and Ors. In this case, while accepting the case made out by the Appellant regarding the deficiencies in the Election Petition, the Division Bench of the High Court, did not commit any error in directing the Election Petitioner to cure the defects in the Election Petition, which had been brought out during the hearing of the Election Petition. Further the decisions cited on both sides, lay down the law in regard to Election Petitions and how Election Petitions were to be presented and the procedure to be strictly followed in filing such Election Petitions, in which corruption, in particular, was the allegation made against the returned candidate. There was little doubt that the provisions had to be strictly construed, but that did not mean that any defect in the Election Petition could not be allowed to be cured in the public interest. If after an opportunity was given, still no steps were taken by the Election Petitioner to cure the defects which were noticed, then the rigours of the procedure indicated by the 1951 Act, came into effect with full vigour. Appeal dismissed.

• FAMILY LAWS

Shaleen Kabra Vs. Shiwani Kabra (Decided on 08.05.2012) MANU/SC/0414/2012

Child custody - Present Appeal filed against the order of the High Court wherein High Court partly allowed the Petition filed by the Respondent whereby Respondent was permitted to have custody of younger son whereas Appellant was to have custody of elder son

Held, It was observed by the Court upon speaking to the children personally, that they were indeed very much attached to each other. This fact was also noted by the Single Judge of the High Court in the impugned judgment, and was also admitted by both the parties. Therefore looking to the overall peculiar circumstances of the case, welfare of both the children would be best served if they remained together. It would not be just and proper to separate both brothers, who were admittedly very close to each other. Hence the children should be kept with the Appellant/father. The Respondent-mother was not in a position to look after the educational need of the elder son.

HIGH COURTS

• ARBITRATION LAWS

DELHI HIGH COURT

Union of India Vs. Peeco Hydraulic Pvt. Ltd. (Decided on 01.05.2012) MANU/DE/1897/2012

Award - Challenge thereto - Present Petition filed wherein an objection was raised to an award passed by the Sole Arbitrator in disputes between the parties arising out of an acceptance of the tender by the Concerned Authority wherein Petitioner was to supply an Oil Hydraulic Spring Testing Machine

Held, In the present case, the time fixed under Clause 3 of the Schedule to the Act could be extended only by the Court and not by parties. The Arbitrator had no jurisdiction to make an Award after the expiry of the time for making the Award unless the parties sought extension by applying to the Court under Section 28. With there being no consent of the parties for the extension of time, and no order of the Court extending the time for making the Award, the entire arbitration proceedings before the succeeding Arbitrator stood vitiated in law.

• SERVICE LAWS

DELHI HIGH COURT

V.K Sayal Vs. Bharat Heavy Electricals Ltd. (Decided on 04.05.2012) MANU/DE/1931/2012

Maintainability - Present suit filed wherein Appellant prayed for an order dismissing Appellant from service, dismissing departmental Appeal to be declared illegal and also related enquiry proceedings rejecting Appellant's Application seeking voluntary retirement be declared illegal

Held, In the instant case, cause of action accrued to the Appellant to take recourse to a legal action when on September 18, 2001 the departmental appellate remedy was exhausted and Appeal was dismissed and as a consequence order dated July 06, 2001 dismissing Appellant from service was upheld. Hence, view taken by Single Judge that the suit was barred by limitation and neither did the interim orders passed in writ and the intra court Appeal postponed the accrual of the cause of action nor Section 14 of the Limitation Act,1963 was applicable.

• CRIMINAL LAWS

BOMBAY HIGH COURT

Rajesh Bhaurao Sadanshiv Vs. State of Maharashtra, (Decided on 02.05.2012) MANU/MH/0577/2012

Conviction - Challenge thereto - Present Appeal filed against the order of conviction by the Additional Sessions Judge for an offence under Section 302 of the Indian Penal Code, 1860

Held, It was not the quantity of witnesses examined by the prosecution to prove its case but it was the quality of the witnesses which needed to be considered. In the present case, there was nothing on record to discredit the evidence of PW6. He had deposed about the presence of PW5 and PW7 on the spot along with the deceased at the time of incident. Further PW6, who was an eyewitness, was friend of the deceased. He was present on the spot and had not gone forward to help deceased at the time of incident, was most probable and a natural human conduct, which most men faced in such situation would resort to. Not having the courage to stop a person armed with a deadly weapon was not and could not be a circumstance to disbelieve the testimony of PW6 particularly when he had stood the test of cross-examination. Hence it could be concluded from the evidence adduced by the prosecution that the act of the Accused was premeditated and was well planned in advance to satisfy his personal vendetta for the incident which had occurred on the earlier day. Appeal dismissed.

 • EDUCATION LAWS

BOMBAY HIGH COURT

Master Arshad Khalid Jamal Vs. State of Maharashtra (Decided on 03.05.2012) MANU/MH/0580/2012

Rectification of error - Present writ Petition filed wherein directions were sought to be given to Respondent Authorities for correction in Petitioner's first name in his school leaving certificate, passing certificate, marksheet

Held, It was observed in the facts and circumstances of this case that the Respondent Authorities ought to have invoked Rule 26.4 of the Secondary School Code and Appendix Six below said Rule. Provisions of Rule 26.4 enables even a student no longer studying to apply to the concerned Officer to make correction in the change in first name based on the documentary evidence available. Appendix Six to the said Rule in unequivocal term provides for procedure for correction in the name or surname as the case may be. Hence, it was clear that the Authorities were not powerless to entertain the prayer for correction in name or surname as the case might be.

TRIBUNALS

• DIRECT TAXATION LAWS

ITAT DELHI

Breeze Constructions (P) Ltd Vs. Income Tax Officer (Decided on 04.05.2012) MANU/ID/0274/2012

Applicability of Section 36(1)(iii) of the Income Tax Act,1961 - Whether the Commissioner of Income Tax (Appeals) has erred in upholding the Assessing Officer view that the company does not have right to transfer or sell the plot or the building constructed thereupon and the Appellant Company can use this plot only for constructing and running the hotel?

Held, It was very clear from a reading of the concerned proviso that in respect of capital borrowed for acquisition of an asset for extension of existing business or profession; for any period beginning from the date on which the capital was borrowed for acquisition of the asset till the date on which such asset was first put to use, shall not be allowed as deduction. By implication this proviso was also applicable when assets were acquired for new business. If the proviso was interpreted to signify that the same would not be applicable to such acquisition of assets, it would defeat the whole purpose of the proviso. Hence, the Commissioner of Income Tax (Appeals) had passed a reasonable order which did not need any interference

Income-tax Officer Vs. Maharishi Solar Technology Pvt. Ltd (Decided on 03.05.2012) MANU/ID/0273/2012

Disallowance - Whether the disallowances made by the Assessing Officer had been rightly made?

Held, In the instant case the Assessee had failed to submit the requisite details at the time of assessment proceedings, therefore, Assessing Officer had rightly made ad hoc disallowance out of expenses on the ground that genuineness of such expenses could not be verified. How the Court agreed with Assessee's counsel that out of certain expenses, there could not be any disallowance. The nature of the expenses was such that no doubt on their quantification could be raised. Now, as far as difference in foreign exchange was concerned, it was to be computed based on straight formula. Similarly, depreciation could also be verified from details available on the record.