SUPREME COURT

• CRIMINAL LAWS

Bhushan Kumar Meen Vs. State of Punjab and Ors. (Decided on 02.09.2011) MANU/SC/1012/2011

Application for quashing of FIR - Dismissal of - Challenged against thereto - High Court dismissed the application filed by the Applicant for quashing the FIR under Section 482 of Code of Criminal Procedure, (Cr.P.C.), 1973 for offences registered under Section 406 and 498 of Indian Penal Code, (IPC), 1860 - Hence this appeal - Whether Single Judge was correct in dismissing the Application for quashing the FIR no ground had been made out and the Appellant was at liberty to set up the plea in defence at the appropriate stage of the trial

Held, the learned Single Judge of the High Court did not appreciate the nature of the on and off relationship between the Appellant and the Respondent No. 2, which caused him to dismiss the Appellant's application under Section 482 Code of Criminal Procedure on the ground that there were serious allegations in the FIR which have been registered against the Appellant regarding his alleged cruelty and maltreatment of the Respondent No. 2 and even misappropriation by him. From the entire records available it is clear that the complaint made by the Respondent No. 2 did not make out a prima facie case to go to trial under Section 498A IPC. Hence, no offence under Section 498A IPC had been made out against the Appellant and the complaint was, therefore, liable to be rejected and the FIR was also liable to be quashed. The appeal is accordingly allowed.

• EXCISE LAWS

Commnr. of Central Excise, Noida Vs. Kitply Industries Ltd. (Decided on 07.09.2011) MANU/SC/1034/2011

Classification - Laminated panels - Excisability questioned - Note 5 Chapter 44 of Central Excise Tariff Act, 1985 - Whether laminated panels of particle and medium density fiber board should be classified under sub- heading No. 4406.90 and 4407.90 or under sub-heading No. 4408.90

Held, that in the process of manufacture of the panels, plain panels of the mother boards (plain particle/MDF fiber) are used. The Papers are passed through the impregnating unit wherein the resin and other required chemicals are spread on the paper and the paper gets impregnated. The impregnated paper is further dried and cut into required length. These paper sheets are assembled with the mother boards in such a way that the impregnated paper is placed on the upper side and one layer of impregnated design paper is placed over one layer of impregnated tissue paper. This assembly is put for pressing under the required heat and pressure. The above assembly is taken out as pre-laminated boards and is ready for dispatch. Hence, from process, it is clear that the products are pre-laminated wood, most aptly falling under chapter heading 44.08 as the said chapter heading specifically speaks of plywood, veneered panels and similar laminated wood. The Tribunal erred in holding that as "particle board" is specifically covered under heading 44.06, laminated particle board will come under the scope of "similar board of wood" under the said heading. It is clear that the product after the lamination is a distinct marketable commodity different from the original one. Proviso to chapter heading 44.06 states that the manufacturing process gives the product the essential character of articles of another heading, then chapter heading 44.12 will not apply. In the instant case, the product after lamination assumes a distinct marketability and brings about a change in the product. This change, after lamination makes the product fall outside the purview of chapter heading 44.06 and that would place the product under chapter heading 44.08 as the word used under chapter heading 44.08 is "similar laminated wood". Hence, on appreciation of the materials on record, the conclusion of the Tribunal was unjustified. Appeals Allowed

• SERVICE LAWS

Samar Bahadur Singh Vs. State of U.P. and Ors. (Decided on 05.09.2011) MANU/SC/1038/2011

Dismissal from Service - Appellant employed as a Constable in the Provincial Armed Constabulary was dismissed from service by the Disciplinary Authority on account of misconduct and registration of criminal case against the Appellant - Appeal before the Appellate Authority and State Public Service Tribunals against the said Order were dismissed - Hence, this appeal - Whether punishment awarded to the Appellant is disproportionate to the offence alleged

Held, allegations brought against Appellant, has been proved by placing cogent materials on record, which go unrebutted due to his absence in the proceedings. Further is it proved that Appellant has been charged on the ground of negligence, dereliction of duty and consuming liquor. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, the department has proved the case on the standard of preponderance of probabilities. The Appellant belongs to a disciplinary force and the members of such a force are required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Hence, no interference required with the Order of the Disciplinary Authority. Appeal Dismissed

Surendra Prasad Shukla Vs. The State of Jharkhand and Ors. (Decided on 01.09.2011) MANU/SC/0995/2011

Dismissal from Service on ground of negligence - Appellant was dismissed from Service as a criminal case was registered against him under Section 392 of Indian Penal Code, 1860 (IPC) - High Court dismissed the Appeal of the Appellant and in Appeal the Supreme Court issued a show-cause why the punishment of dismissal should not be altered to compulsory retirement - Whether such negligence of the Appellant was sufficient for the disciplinary authority to dismiss him from service

Held, there was no charge against the Appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The Appellant was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The Appellant had served the government as a Constable and thereafter as a Head Constable from 7th August, 1971 till he was dismissed from service on 28th February, 2005, i.e. for 34 years, and for such long service he had earned pension. The Appellant cannot be deprived of his pension for the service that he had rendered for long 34 years. Punishment of dismissal modified to compulsory retirement. Appeal Allowed in Part.

HIGH COURT

• CRIMINAL

BOMBAY HIGH COURT

Bablya S/o. Baliram Madhvi Indian Inhabitant Vs. The State of Maharashtra (Decided on 06.09.2011) MANU/MH/1093/2011

Murder - Conviction challenged - Appeal challenging order passed by Additional Sessions Judge whereby Appellants were convicted for offences punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 - Whether offence was murder and punishable under Section 302 or it would be culpable homicide not amounting to murder punishable under Section 304 Part II of the IPC

Held, in the instant case the injury caused by Appellant 'B' was only one and as per the opinion of the doctor the death was due to haemorrhagic shock due to excessive bleeding - Medical evidence did not state as to whether solitary injury was sufficient in ordinary course of nature to cause death coupled with the fact that doctor had also opined that if deceased would have been brought to the hospital he would have survived - Hence, taking into consideration evidence of the prosecution so far as complicity of Appellant 'B' was concerned, offence committed by him was culpable homicide not amounting to murder and therefore punishable under Section 304 Part II of the IPC - Further, prosecution failed to establish that Appellants 'S' and 'N' were the same persons who came on the scene of offence along with Appellant 'B' and facilitated Appellant 'B' to inflict blow by means of knife on the person of deceased and therefore conviction of appellants 'S' and 'N', could not be sustained in law and was set aside - Appeals disposed of.

DELHI HIGH COURT

Gurpreet Singh and Ors. Vs. Smt. Munni Devi (Decided on 05.09.2011) MANU/DE/3425/2011

Tenancy - Eviction petition - Maintainability - Respondent's deceased husband, purchased impugned shop and after the death of her husband the Respondent claimed to have become the owner of the impugned shop - Respondent filed eviction petition against Petitioners for their eviction by invoking Section 14D of Delhi Rent Control Act, 1958 - Petitioners sought leave to contest the eviction petition primarily on the ground that the eviction petition under Section 14 D of the Act was not maintainable since the impugned shop had been let out to him neither by the Respondent nor by her deceased husband but, in fact, he was already in occupation of the impugned shop as a tenant under the original owner from whom the Respondent's husband had purchased it - Additional Rent Controller rejected objection raised by the Petitioners regarding the maintainability of the eviction - Hence, the instant petition - Whether Additional Rent Controller rightly rejected the objection raised by the Petitioners

Held, the view taken by the Additional Rent Controller that even if the impugned shop had not been let out to the Petitioners' father either by the Respondent or by her deceased husband the eviction petition under Section. 14D of the Act would be maintainable was clearly contrary to the Constitution Bench decision of the Supreme Court in Nathi Devi vs. Radha Devi Gupta wherein it had been clearly held that for a petition under Section 14D of the Act to be maintainable the premises in question should have either been let out by the widow herself or by her deceased husband and by none else - In the instant case, since the impugned shop had been let out to the father of the three Petitioners by the previous owner of the property from whom the Respondent's husband had purchased it the eviction petition under Section 14D of the Act was not maintainable - Consequently, not only the leave to defend application filed by the Petitioners should have been allowed but the eviction petition itself should have been rejected as being not maintainable Under Section 14D of the Act - Impugned order of Additional Rent Control set aside - Petition allowed.

• CONSTITUTION

MADRAS HIGH COURT

K.A. Musthafa, S/o K. Ali Mohammed Vs. The Chief Minister, Government of Tamil Nadu and Ors. (Decided on 30.08.2011) MANU/TN/3478/2011

Removal of minister - Determination of Jurisdiction of High Court - 2nd Respondent Member of Legislative Assembly allegedly removed three existing agents and nominated three other persons of his choice in their places in 3rd Respondent Society - Petitioner filed instant writ petition contending that the public largesse was arbitrarily given by 2nd Respondent showing favouritism and it should have been given calling for a bid/tender - Petitioner further contended that 2nd Respondent had no locus standi to interfere in the matter of 3rd Respondent as these matters were beyond the scope of his ministry - Petitioner sought a direction to 1st Respondent Chief Minister to remove the 2nd Respondent from her Council of Minister for his alleged failure in discharging his duties as per his oath of office taken under Form - V of Schedule III of the Constitution

Held, as per Articles 163 and 164 of the Constitution of India it was manifestly clear that the Ministers of a Legislative Assembly were appointed by the Governor albeit on the advice of the Chief Minister and they held their office during the pleasure of the Governor - A complete machinery had been provided in the Constitution for the removal or disqualification of a Minister - Pleasure of dismissing/removing a Minister had to be that of the Governor and not that of High Court - High Court, therefore, could not issue a writ of mandamus or quo warranto for the removal of a Minister on the basis of some allegations of exercising power illegally or arbitrarily, to favour a particular person, in the matter of grant of licence or allotment of any work related to public - Further, no material had been brought on record to show that on the basis of the said letter of the 2nd Respondent the persons named therein had been appointed as agents by removing the existing agents - If that was done, then the aggrieved person could have challenged the decision of the 2nd Respondent as illegal and arbitrary - Petition dismissed.

• TRIBUNALS

ITAT MUMBAI 'B' BENCH

Dy. Commr. of Income-tax Vs. Birla International P. Ltd. (Decided on 07.09.2011) MANU/IU/0898/2011

Direct Taxation -- Appeal against order of Assessment - Assessing officer made disallowance of interest by holding that it was not incurred for the purpose of business - Learned CIT (A) deleted disallowance by relying on the orders passed by the Tribunal in earlier years - Whether order of learned CIT (A) justified

Held, on perusal of relevant material on record, it was observed that the Learned CIT(A) had deleted the addition by relying on the orders passed by the Tribunal in the assessee's own case for earlier years - No material had been placed on record to demonstrate that such orders had either been reversed or modified in any further proceedings - Thus, the order passed by the learned CIT(A) on this issue was in consonance with the consistent view taken by the Tribunal in earlier years in assessee's own cases allowing deduction of interest - Accordingly by following the precedents impugned order was upheld - Appeal dismissed.