Legal News & Views

Supreme Court in Hardei vs. State of UP, has held that choice of police not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the CrPC to summon such a person on account of evidence recorded during trial. Article referred: http://www.livelaw.in/trial-court-empowered-summon-suspect-trial-even-not-chargesheeted-policesc-read-jt/

A division Bench of Delhi High Court Today held that Registrar of Cooperative Societies is a ‘Public Authority’ and hence duty bound to comply with the provisions of RTI Act and is required to provide information as provided for under Section 2(f) of the Act subject to the limitations enumerated under Section 8 of the RTI Act. The Bench comprising of Justices S. Ravindra Bhat and Deepa Sharma reversed a decision of Central information Commission in which it is held that the Cooperative Societies Act being a special Act took precedence over the RTI Act (which is a general Act) especially when the special Act itself provided to a bona-fide member of a Cooperative Society identical relief as provided under the RTI Act’. Article referred: http://www.livelaw.in/registrar-cooperative-societies-public-authority-required-provide-information-rti-act-delhi-hc/

In a recent judgment Union of India Vs. M/s. Ambica Construction, the issue raised before the Hon'ble Supreme Court was in regard to the power of the Arbitrator to award pendente lite interest when contract contains bar for grant of interest in a case covered by the Arbitration Act, 1940 . A Division Bench of this Court had doubted the correctness of the decisions in Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age (1996) and Madnani Construction Corporation (P) Ltd. v. Union of India and Others (2010). In view of the decision of the Constitution Bench judgment in Secretary, Irrigation Department, Government of Orissa & Ors. v. G.C. Roy (1992) and Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa & Ors. v. N.C. Budharaj (D) by L.Rs. & Ors. (2001) which held that the Arbitrator had the jurisdiction and authority to award interest for pre-reference period, pendente lite and future period if there was no express bar in the contract reg

Supreme Court, in State of M.P. vs. Udaibhan, has observed that undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not re-assure the society that the offender has been properly dealt with. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh was hearing the Appeal filed by the State against the Judgment of Madhya Pradesh High Court wherein it reduced the sentence imposed by Trial Court for imprisonment which was R.I. for 10 years for the offence punishable under Section 307 as well as Section 307 read with Section 34 of the IPC to a period already undergone by the respondents which was of one year and nine months only. Article referred: http://www.livelaw.in/undue-leniency-in-awarding-sentence-needs-to-be-avoided-says-supreme-court/

Karnataka High Court in M/S Deepak Apparels Pvt Ltd vs City Union Bank Ltd has held that writ petition is not ordinarily maintainable against the order of the Debt Recovery Tribunal, passed in exercise of the jurisdiction under S.17 of the SARFAESI Act. Full Bench answering a reference held that it can be entertained only if the court is convinced that it falls within the exceptional categories recognized by Apex Court Single Bench has expressed his doubts about the correctness in decision of Hotel Vandana Palace case wherein it was held that a writ petition is maintainable without filing an appeal to the Appellate Tribunal as provided under S.18 of the Act, on the ground that the pre-deposit is required under S.18 of the SARFAESI Act and in such circumstances, it cannot be considered as an efficacious remedy. Article referred: http://www.livelaw.in/writ-petition-not-ordinarily-maintainable-order-drt-s-17-sarfaesi-act-karnataka-hc-fb/

The Delhi High Court speaking through Justice Ved Prakash Vaish in Dr.Professor Santhosh Panda vs. Indira Gandhi National Open University [ W.P.(C) 2299/2016] has ruled that a person on deputation (deputationist) cannot seek to claim any vested right to the post deputed, or get absorbed to the deputed department once the period of deputation, from his parent department is over. The Petitioner was working as professor in the respondent university. A notification in the meanwhile was issued, calling for appointment to the post of Chairperson, National Council of Teacher Education. The term prescribed for the post was a period of four years or 60 years whichever was earlier. The Petitioner made a request with the university to be deputed to the said post. Article referred: http://www.livelaw.in/person-deputation-no-right-demand-continuation-service-deputation-period-delhi-hc/

The Bombay High Court has held that relevant period for deciding the vicarious liability of the Director for the act committed by the Company is not only when the cheque was dishonoured, but also when the disputed transaction was entered into, and from time to time thereafter like at the time of issuance of the cheque in question, presentation of said cheque in Bank etc. Justice Dr. Shalini Phansalkar Joshi made this observation in Mrs. Lata Pramod Dave vs. M/s. Mode Export Private Limited, wherein the petitioner had approached the High Court to quash the process under Section 138 Negotiable Instrument Act issued against her on the ground that, on the date when the cheque in question was presented to the Bank and came to be dishonoured, she was no more the Director of the Company as she has already resigned from the Company. According to Petitioner, she has tendered her resignation on 1st January 2013 and it was received by the Company on the same date. Article referred: http://www.l

The High Court of Kerala in P.K Satheesh Babu v State of Kerala [Crl M.C 1208 OF 2016] has ruled that mere failure or omission to lower National Flag at or before sunset does not in any manner amount to dishonor of the National Flag. Prosecution was launched against accused for offence under Section 2 of the Prevention of Insult to National Honour Act,1971. It was alleged that he has not cared to lower the National Flag hoisted in front of his office even at sunset. Article referred: http://www.livelaw.in/failure-to-lower-national-flag-at-or-before-sunset-does-not-amount-to-dishonor-of-the-national-flag-kerala-hc/

Dismissing a suit for adverse possession filed against Bangalore Development Authority, the Supreme Court in Bangalore Development Authority Vs. N. Jayamma has reiterated that the period of the   adverse possession can only be counted from the date of purchase of the property and the period for which the original vendor held the property, and the date of Mahazar could not be counted. Possession of the Suit property (Acquired by the Government) was handed over to the BDA on August 30, 1988. The original owner of the property, being in actual possession sold the property to the plaintiff who filed a suit in 2001 claiming adverse possession. Suit was decreed and the High Court upheld the appeal Article referred: http://www.livelaw.in/period-adverse-possession-can-counted-date-purchase-property-not-date-mahazar-supreme-court/

The Punjab and Haryana High Court has ruled that an investigating agency cannot be allowed to add or delete offences during the progress of trial. It can also not be permitted to convert a magisterial trial into sessions’ trial or vice versa. Depending on the gravity of offences and the punishment prescribed, a criminal trial is classified into magisterial and sessions’ trial. The offence is triable by a court of session, if it is punishable with imprisonment for life or more than seven years under the special law. Article referred: http://www.tribuneindia.com/news/haryana/police-can-t-add-delete-offences-during-trial-hc/207143.html

The scourge of mofussil courts issuing joint account cheque to victims of motor accident cases, thereby helping the accident case specialist-lawyers withdraw a bulk of the sum as fee, has come to the knowledge of the Madras high court. Directing motor accident claims courts not to issue cheques in favour of any person other than the victim, or in the name of any 'company,' Justice S Vaidhyanathan said: "It has been brought to the attention of this court that in crossed cheques issued to claimants, it is mentioned as "& co." instead of "a/c payee". Such practice has to be avoided by all trial courts and crossing should be made in the cheques only with the endorsement "A/C payee" and not with the endorsement "& co." Article referred: http://timesofindia.indiatimes.com/city/chennai/Compensation-cheques-must-be-in-name-of-victim-says-High-Court/articleshow/51379727.cms

In a significant ruling, the Bombay High Court has held that legal heirs of a deceased convict are liable to pay fines and compensation, imposed by the trial courts, from the properties left behind by him. The judgement was delivered by Justice Shalini Phansalkar Joshi, who observed that death of a convict does not discharge him from the liability of paying fine and compensation imposed by court, and this amount can be recovered from the properties left behind by the deceased. Article referred: http://indianexpress.com/article/india/india-news-india/legal-heirs-of-deceased-convicts-liable-to-pay-fine-bombay-hc/

In a recent order, the Central Information Commission has ruled that subject to availability and convenience of the Minister at office in capital city or in his constituency, the ministers owe a moral and democratic responsibility to meet their voters or people in the constituency. The CIC ruled that Ministers in Union and State Governments are public authorities and recommended that the Centre and States provide necessary support to each Minister, which includes designation of some officers or their appointment as Public Information Officers and First Appellate Authorities. It also recommended that they be given an official website for suo motu disclosure of information. The appointment of a Public Information Officer has been directed to be made within two months. A CPIO for the office of Minister of Law has also been directed to be appointed. Lastly, it recommended that the ‘oath of office and affirmations’ administered to each Minister must be changed from being one of secrecy, to

It is “not legal and logical” to reject plea without giving any opportunity to a complainant to lead evidence, a Delhi court has observed while asking a magistrate to pass a reasoned order on a complaint against an IAS officer for allegedly using a false OBC certificate. Special judge Anju Bajaj Chandna said observations given by metropolitan magistrate in the order dismissing the complaint against the bureaucrat and others were “premature” and the complainant should have been given an opportunity to lead pre-summoning evidence in support of his plea. Article referred: http://www.legalindia.com/news/illegal-reject-plea-without-suers-evidence

A Full bench of the Kerala High Court in Dr D.Radhakrishna Pillai v State of Kerala and others [W.P.(C) 17148/13] and various other connected cases thereto, has ruled in affirmative that Regulations prescribed by University Grants Commission (UGC) for appointment to the posts of principles and teachers in various universities and affiliated colleges have to be mandatorily followed. The Full Bench overruled a verdict of a division bench as in S.N. College vs. N. Raveendran decided on 24 October, 2001 which held UGC Regulations,1998 would not apply in the absence of any amendments to the university first statutes/byelaws. The matters were referred to a larger bench after a Single bench expressed doubt whether the ruling of the Division Bench in Raveendran’s case laid down a correct law, in view of numerous rulings by apex court which had upheld the validity of UGC norms and regulations. Article referred: http://www.livelaw.in/ugc-regulations-mandatory-rules-full-bench-kerala-high-court

The Gujarat High Court has held that when a complaint under Section 138 Negotiable Instruments Act, does not name the Partnership firm as accused, but only the partners, Section 319 of the Code of Criminal Procedure cannot be invoked to implead the Partnership firm as the accused, to save such a serious infirmity in the complaint. Justice J.B. Pardiwala observed that when a complaint under Section 138 of the Act has the initial defect in its sustainability, such a defect cannot be cured by amending the proceedings by virtue of an application under Section 319 of the Cr. P.C. Article referred: http://www.livelaw.in/sec-319-crpc-cannot-invoked-add-partnership-firm-accused-trial-sec-138-ni-act-gujarat-hc/

Supreme Court in Commissioner Of Income Tax vs. M/s. Meghalaya Steels, has clarified that subsidies allowed to assessee, has to be included under the head “profits and gains of business or profession”, and not under the head “income from other sources” for the purpose of Income Tax assessment. Dismissing the appeal preferred by the Revenue, the Apex Court Bench comprising of Justices Kurian Joseph and R.F. Nariman observed that so long as profits and gains emanate directly from the business itself, the fact that the immediate source of the subsidies is the Government would make no difference, as it cannot be disputed that the said subsidies are only in order to reimburse, wholly or partially, costs actually incurred by the assessee in the manufacturing and selling of its products. Article referred: http://www.livelaw.in/subsidies-included-profits-gains-business-profession-supreme-court/

In Muhammed Siyad P.A. & Ors. v. Sreejith Appu & Ors [W.A No:1135/2015 &other connected cases] the petitioners based on the position of their rank, claimed before the single bench,that they are eligible for consideration towards appointment to various posts of Assistant Executive Engineers existing in the Kerala State Electricity Board(K.S.E.B).The petitioners taking rescue under an information obtained under the R.T.I application, contended that various vacancies (Unfilled/anticipated) existed in the K.S.E.B, so as to substantiate their claim towards appointment.Hence they interalia pleaded for a direction to the respondent K.S.E.B , to notify these vacancies before the Public Service Commission [P.S.C] and to further advise candidates from the rank list to these claimed vacancies as expeditiously as possible, highlighting the expiry of rank list on 15/12/13. Petitioners made a further plea, by placing support on the information received under R.T.I application to harbor t

Supreme Court in Employees State Insurance Corporation vs. A.K. Abdul Samad & Anr, has held that the Courts have no discretion to reduce the fine prescribed in Sec 85 (a) (i) (b) of the Employees’ State Insurance Corporation Act, once the offence has been established. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh held that discretion as per proviso to Section 85 (a) (i) (b) is confined only in respect of term of imprisonment. Article referred: http://www.livelaw.in/courts-no-discretion-reduce-fine-amount-prescribed-esi-act-supreme-court/

Supreme Court, in State of Punjab Vs. M/s. Shreyans Indus Ltd., has held that power of the Sales Tax Commissioner to extend the time to pass an order on assessment is to be exercised before the normal period of assessment expires.Three Judge Bench of the Apex Court comprising of Chief Justice of India T.S. Thakur, Justices A.K.Sikri and R. Banumati dismissed the appeals by Revenue challenging a judgement of Punjab and Haryana High Court. Article referred: http://www.livelaw.in/sales-tax-time-assessment-cannot-extended-assessment-already-become-time-barred-sc/

Supreme Court in State of M.P. vs. Goloo Raikwar, has held that when medical report establishes that the injuries inflicted intentionally on the deceased by the accused, were cumulatively sufficient to cause death in the ordinary course of nature, Thirdly of Section 300 IPC is attracted, even if no significant injury had been inflicted on a vital part of the body and when the accused could not be said to have the intention of causing death. Apex Court Bench comprising of Justices J.S. Kehar and C. Nagappan was hearing an appeal by the State against the High Court Judgment which had altered the conviction recorded by Trial court under Section 302 IPC to Section Part I IPC. Article referred: http://www.livelaw.in/cumulative-effect-injuries-sufficient-cause-death-accused-guilty-murder-sc/

The Kerala high court on Thursday clarified that motor vehicles department (MVD) officials have the power to seize records of a vehicle that is modified or altered from its original specifications. However, such power should be used only in exceptional circumstances, the court said. Justice V Chitambaresh issued the clarification after considering a petition filed by the MVD through government pleader K A Sanjeetha pointing out that any MVD officer has the power to seize or take copies of vehicle records if he believes any offence under the Motor Vehicles Act has been committed as per section 213(5)(d). Moreover, the Motor Vehicle Rules of 1989 further states that MVD officers can exercise the powers and perform the duties assigned to them under the Act, it was contended. Article referred: http://timesofindia.indiatimes.com/city/kochi/MVD-officials-can-seize-vehicle-records-HC/articleshow/51448138.cms

In an effort to make two-wheeler riders obey the compulsory helmet rule, the Madras High Court has reduced the compensation awarded to a victim of motor vehicle accident by Rs. 50,000 for contributory negligence on his part by not wearing a helmet. A Division Bench of R. Sudhakar and S. Vaidyanathan made the rare order on a cross objection moved by the victim Mani Raj and an appeal moved by the National Insurance Company against the order of Motor Accident Claims Tribunal (Additional District Judge) Fast Track Court No.I, Poonamallee dated November 17, 2011. The issue pertains to an accident in which Mani Raj was hit by a speeding car on Chitlapakkam main road on November 16, 2007. He was grievously injured in the accident and was bed-ridden, in a vegetative state till 2012. Article referred: http://www.thehindu.com/news/cities/chennai/hc-reduces-compensation-for-not-wearing-helmet/article8379171.ece

In a significant judgment that will change the way beneficiaries of multiple plot allotment are prosecuted, the Punjab and Haryana High Court has made it clear that misrepresentation for allotment of a second flat will not amount to cheating if it can be verified and detected. “Even if it is assumed that the prosecution story is correct and a wrong representation was made, the housing board had the means to verify whether any property stood in the name of the accused or her husband or any other family member. It being so, even the ingredients of cheating as defined in Section 420 of the IPC are not made out,” the High Court has ruled. The respondent was sought to be prosecuted on the grounds that her husband owned a house in Sector 45-C. However, by concealing the fact, she got another flat in Sector 44-B. It was argued on the respondent’s behalf that the flat allotted in Sector 44-B was applied for in 1983 before the acquisition of the house in Sector 45-C in May 1984. Taking up th

The Supreme Court on Tuesday said coaching centres in residential areas were a nuisance to women and the elderly and must shift out to commercial premises or institutional areas. A bench of Chief Justice T S Thakur and Justice U U Lalit refused to give any relief to petitioner All Rajasthan Coaching Institutes Association, which had challenged the eviction order served on its members by Jaipur Development Authority, following a Rajasthan high court order banning functioning of tutorials illegally from residential colonies. Article referred: http://timesofindia.indiatimes.com/india/Coaching-centres-must-go-from-residential-areas-SC/articleshow/51320705.cms

Supreme Court, in Uttam vs. Saubhag Singh, has summarized the law governing the Mitakshara joint family property, prior to the amendment of 2005. Apex Court bench comprising of Justices Kurian Joseph and R.F. Nariman was hearing an appeal arising from a suit for partition, which was dismissed both by Trial Court and the High Court, holding that the date of the birth of the plaintiff in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. Article referred: http://www.livelaw.in/supreme-court-summarizes-law-mitakshara-joint-family-property-prior-2005-amendment/

The Delhi High Court last week told the Commissioner of Trade Tax to ensure its officers do not collect cheques from business premises on the ground of discrepancy in the levy and threatening to seal the establishment. The court passed the order because there have been such instances recently and the circular issued by the authorities in this context did not clearly bar such practice by the officers. In this case, Gullu's vs Commissioner, the Additional Value Added Tax officer visited the business premises and told the proprietor that the levy on the meat sold was higher than paid by her and unless Rs 12 lakh was paid by cheque on the spot, the premises would be sealed. The cheque was handed over under the threat. Later, she moved the commissioner alleging that what happened was illegal. The commissioner reviewed the computation and demanded Rs 28 lakh on the spot or else the establishment would be sealed. She then paid Rs 5 lakh. She moved the high court for return of the cheque a

The Calcutta High Court last week ruled that the Income Tax Appellate Tribunal was justified in granting interest to Birla Corporation on refund arising due to excess payment on self-assessment. It also stated the relevant provision, Section 244A of the Income Tax Act, did not bar payment of interest on such refunds. The court thus dismissed the appeal of the Commissioner of Income Tax against the judgment of the tribunal. The revenue authorities argued the law did not provide for interest. Rejecting their contentions, the high court stated when an assessee out of abundant caution pays tax after self-assessment, on which claim is accepted, resulting in refund, the assessee should be entitled to interest. The provision was inserted in the Act as a measure of rationalisation to ensure that the assessee is compensated by the government for monies legitimately belonging to the assessee and wrongfully retained by it.

Supreme Court in Anant Prakash Sinha @ Anant Sinha vs State of Haryana, has observed that while adding or altering a charge under Section 216 CrPC, the trial court has to keep in view, the test of prejudice to the accused. Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh said that it is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. Article referred: http://www.livelaw.in/test-prejudice-accused-kept-mind-adding-altering-charge-sc/

The Madras High Court has made it clear that the national anthem should be sung in all private schools in Tamil Nadu during the morning assembly. A Bench comprising Chief Justice Sanjay Kishan Kaul and Justice M.M. Sundresh gave the direction on a petition seeking that singing of national anthem should be made mandatory in schools. “Private schools must follow such singing of national anthem as part of their curriculum,” the bench said disposing a PIL by N. Selvathirumal, an ex-service man, seeking a direction to authorities to make it mandatory for all private schools in the State to sing the national anthem during the assembly. Article referred: http://www.thehindu.com/news/national/tamil-nadu/national-anthem-to-be-sung-daily-in-tamil-nadu-private-schools-says-madras-hc/article8318104.ece

Royal Western India Turf Club Ltd. v. E.S.I. Corporation and Ors. The Supreme Court rejected submissions of the Royal Western India Turf Club Ltd. that casual workers employed by it were outside the ambit of the Employees State Insurance Act, 1948. Terming such an approach "tenuous", the Court held the Club liable for making contributions to the Employees State Insurance Corporation, with interest. The Club's submissions before the Court that being temporary staff, engaged on race-days for issuing tickets, were not covered as 'employees' under the Act were rejected. Also were rejected 'consent terms' evidence such a status quo as the same pertained to an earlier period in which other establishments of the Turf Club were also covered.

State of Kerala v. P.B. Sourabhan and Ors. The State Police Chief or Director General of Police is empowered to appoint a superior officer to investigate a crime case registered outside the territorial jurisdiction of such officer. The Supreme Court disagreed with the finding of the High Court that such an exercise of powers was in excess of the powers under Section 36 Code of Criminal Procedure, 1973. It noted that such a conclusion could not be reached on a reading of Section 36 of the CrPC as it contained no direct bar to the effect; rather "It is the satisfaction of the State Police Chief, in the light of the facts of a given case, that would be determinative of the appointment to be made in which situation the limits of jurisdiction will not act as fetter or come in the way of exercise of such jurisdiction by the superior officer so appointed."

If part payments or settlements made after the issuance of a Cheque, Can the Complainant issue a demand for a lesser amount? Whether in such circumstances the criminal prosecution for Dishonour of a Cheque under Section 138 of Negotiable Instruments Act, for higher amount is legally sustainable or not? These two interesting questions arose in a case before Supreme Court which were not answered by the bench as the parties arrived at an amicable settlement. The Apex Court Bench comprising of Justices Dipak Misra and Shiva Kirti Singh in M/s. Moser Baer Photo Voltaic Ltd. Vs. M/s. Photon Energy Systems Ltd. & Ors said that the above questions of law is left open for adjudication in any other appropriate case. Article referred: http://www.livelaw.in/will-prosecution-section-138-ni-act-sustain-part-payments-made-issuance-cheque/