Legal News & Views

In a significant judgment, the Madras High Court has ruled that litigants can no longer approach the High Court directly if police refuse to act upon their complaints, before exploiting the other available remedies, including moving the jurisdictional judicial magistrate. Article referred: http://www.thehindu.com/news/cities/chennai/litigants-can-no-longer-approach-high-court-directly-if-police-fail-to-act-on-their-complaints/article9156027.ece

Quashing a family court verdict, the Nagpur bench of Bombay High Court allowed an Amravati woman to end her marriage by ruling that “suspecting wife’s character is cruelty to her”. The wife, an engineer, had approached the family court for divorce after 13 years of tumultuous marriage citing her husband’s supposed inferiority complex and continual ill-treatment, including bouts of physical abuse. Article referred: http://timesofindia.indiatimes.com/city/nagpur/Suspecting-wifes-character-amounts-to-cruelty-rules-HC/articleshow/54552892.cms

Government is liable to compensate for death or injury occurring to a vehicle owner during an accident as road tax is levied by them and as coverage is not available to the owner in the insurance provided as per law, says the Kerala High Court. Government can either pay such compensation or assign the burden to insurance companies through appropriate change in legislation, the court said. A division bench comprising justices CT Ravikumar and KP Jyothindranath asked the government to give due attention to the matter after considering an appeal (MACA No. 2102/2013) filed by the wife, children, and mother of Biju of Kottaram Nagar in Kollam who died in a motorcycle accident at around 5.30pm on March 21, 2010.

In a batch of appeals from different states, the Supreme Court ruled that a manufacturing company was not entitled to refund of commercial taxes if benefits under the law are not passed on to the ultimate consumer. Otherwise, there would be unjust enrichment, the court stated while hearing the appeals, led by Commissioner of Central Excise vs Addision & Co. Manufacturers had claimed refunds on taxes paid, invoking discounts such as those on excise and turnover tax. The authorities issued notices asking the firm to show that the duty had not been passed on to buyers.

The Supreme Court in International Confederation of Societies of Authors and Composers (CISAC) vs. Aditya Pandey & Ors, has upheld a Delhi High Court order which had held that event organisers need not secure a licence from lyricists and musicians for playing the song in public even after it has paid for the broadcasting of the song to sound recording company. The Supreme Court has upheld the Delhi High Court order in view of the fact that the suit was filed in 2006, before introduction Sub-Section 10 of Section 19 of the Copyright Act. Article referred: http://www.livelaw.in/dual-licenses-not-needed-playing-songs-public-events-sc/

The Supreme Court in State Bank of India & Ors. Vs. Neelam Nag, has held that pendency of a criminal case against an employee cannot be the sole basis to suspend the disciplinary proceedings initiated against him/her for an indefinite period. In the instant case, a complaint for criminal breach of trust was lodged against a bank employee in February 2007. In September 2008, the competent authority initiated departmental inquiry against her. Article referred: http://www.livelaw.in/criminal-case-pendency-cant-sole-basis-suspend-disciplinary-proceedings-sc/

The Supreme Court in Sandhya Rani Debbarma & Ors. Vs. The National Insurance Company Ltd. & Anr, has observed that determining the compensation under different heads such as loss of estate, funeral expenses, loss of consortium etc. is crucial while computing award of compensation due to dependants of the deceased in motor accidents. In the instant case, the husband of the appellant Sadhya Rani died in an accident in Baramur in 2003, following which she filed a suit before the Agartala Motor Accident Claims Tribunal seeking a compensation of Rs 33.45 lakh. Article referred: http://www.livelaw.in/determination-compensation-different-heads-crucial-computing-award-motor-accidents-sc/

Explaining the difference between Sections 301 and 302 CrPC, the Court said that the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the public prosecutor. It is because the legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court, however, as far as Section 302 CrPC is concerned, power is conferred on the Magistrate to grant permission to the complainant to conduct the prosecution independently. It was further clarified that the role of the informant or the private party is limited during the prosecution of a case in a Court of Session and the counsel engaged by him is required to act under the directions of public prosecutor. Article referred: http://blog.scconline.com/post/2016/09/15/magistrate-can-grant-permission-to-the-complainant-under-section-302-crpc-to-conduct-the-prosecution-independently/

The Supreme Court in Delhi Development Authority vs. Sukhbir Singh & Ors., has observed that persons whose property is expropriated by the state need to be paid immediately so as to enable them to rehabilitate. This observation was made by a Bench comprising Justice Kurian Joseph and Justice RF Nariman while dismissing an appeal by the Delhi Development Corporation seeking a revisit to the dictum laid down in Pune Municipal Corporation vs. HM Solanki. Article referred: http://www.livelaw.in/govt-must-compensate-promptly-land-expropriation-sc/

The Supreme Court in Pankaj vs. State of Rajasthan, has observed that though motive is not sine qua non for the conviction of the accused, the effect of not proving motive raises a suspicion in the mind. The main contention of the appellant before the apex court in this case was that there was no motive behind the killing and it is beyond imagination that a person without any provocation, motive or instigation will straight away open fire. The accused had challenged his conviction under Section 302 IPC by the High Court of Rajasthan. Setting aside the conviction and sentence, the Bench comprising Justice V. Gopala Gowda and Justice R.K. Agrawal held: “Moreover, the prosecution is not able to prove the motive clearly. Though motive is not sine qua non for the conviction of the appellant-accused, the effect of not proving motive raises a suspicion in the mind. In the present case, it appears that the theory behind motive has been given after much thought process.” Article referred: htt...

In Gyan Chand vs State Of AP, the Supreme Court on Monday termed a High Court order which convicted a person for civil contempt, as “deplorable”. A three-judge Bench comprising Justice Anil R. Dave, Justice Uday Umesh Lalit and Justice L. Nageswara Rao also observed that it would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt. Article referred: http://www.livelaw.in/not-able-impossible-not-contempt-court-sc/

The Supreme Court on Monday held the dishonour of a post-dated cheque given for repayment of loan installment, which is also described as “security” in the loan agreement, is covered by Section 138 of the Negotiable Instruments Act, 1881. The Division Bench of Justice Dipak Mishra and Justice A.K. Goel has dismissed an appeal filed by the director of a company against the order of the Delhi High Court by which the court dismissed his petition to quash criminal complaints filed under Section 138 of the Negotiable Instrument Act, against him and the company. Article referred: http://www.livelaw.in/dishonour-cheque-issued-security-repayment-loan-covered-us-138-ni-act-sc/

The Allahabad High Court in Abhishek Mishra vs State Of U.P. has held that the Chief Judicial Magistrate exercising jurisdiction in non-metropolitan area in exercise of powers conferred on by Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, can assist a secured creditor in taking possession of the secured asset and pass an order in the creditor’s favour for the purpose. Article referred: http://www.livelaw.in/cjm-working-non-metropolitan-area-can-assist-secured-creditor-take-possession-allahabad-hc/

The High Court of Calcutta, in a decision pertaining to framing of charge in a corruption case, has said that absence of written charge is a curable defect when there is no proof that any prejudice is caused to the accused. The argument, fortified by the earlier decisions of the Supreme Court that written charge is a must, advanced by the counsel for the petitioner was repelled by the Court on finding that no prejudice to the petitioner was caused. Article referred: http://www.livelaw.in/absence-written-charge-curable-defect-calcutta-hc/

The Patna High Court in Rajesh Kumar vs. Pushpa Rani, considered the sustainability of a decree for judicial separation. The Bench comprising Chief Justice Iqbal Ahmed Ansari and Justice Nilu Agrawal dealt with the effect on a person, who having received a decree of judicial separation and later a divorce decree, proceeds to remarry and father children. Article referred: http://www.livelaw.in/divorce-decree-goes-unchallenged-next-marriage-legal-patna-hc/

The Income-Tax (I-T) Act provides for exemption from long-term capital gains where the sale proceeds of the original asset are invested in a new residential property. The Bombay high court, in a recent order (Humayun Suleman Merchant vs. CCIT), has held that such an exemption will be available only to the extent to which the amount has been actually utilized by the taxpayer, before the due date of filing his I-T return. Article referred: http://timesofindia.indiatimes.com/city/mumbai/HC-orders-tighter-norms-on-gains-from-property-sale/articleshow/54336500.cms

The Supreme Court of India Today in Youth Bar Association of India Vs Union of India and Others has issued 10 important Guidelines on First Information Report. The Bench comprising of Justices Dipak Misra and C.Nagappan has issued the following Guidelines (a) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C. (b) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/agent/parokar for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the Court. On such application being made, the copy shall be supplied within twenty-four hours. (c) Once the First Information Report is forwarded by the police station to the concerned Magistrate or any Spec...

Madras High Court has recently directed the Trial Courts to treat victims and witnesses as Court’s Guests. Justice Dr.P.Devadass was considering applications under Section 482 of Code of Criminal Procedure filed by Accused persons in a corruption Case, challenging the Order of Special Judge by which he dismissed their Petitions to re-call the witnesses for cross examination. The Counsel for the Applicants has submitted that under Section 311 of Code of Criminal Procedure, power has been given to the Court to recall a witness, who has been already examined or to summon a fresh witness. It is intended to bring forth relevant evidence to the notice of the Court to enable it to render a correct finding. When it is essential to recall, the Court is bound to recall it. Article referred: http://www.livelaw.in/victims-witnesses-guests-court-madras-hc/

The Allahabad High Court, in Dr. Kuldeep Kaushik vs. State of UP, has held that a magistrate has the authority to interfere in a case investigation if it is not going on in a proper or fair manner. In the instant case, a magistrate had dismissed a surrender application filed by a doctor, accused of medical negligence, on the ground that any interference in the investigation cannot be done. In the surrender application, it was requested that various papers, along with surrender application, be sent to the Investigating Officer and after taking into consideration the papers, a report may be called for from the Investigating Officer. Article referred: http://www.livelaw.in/magistrate-can-interfere-investigation-improper-unfair-allahabad-hc/

The Calcutta High Court, in M.K. Products vs. Blue Ocean Exports (P) Ltd. & Ors., has said that a complainant cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure, in a case under Section 138 of the Negotiable Instruments Act. The judgement delivered by Justice Sankar Acharyya dealt with the question of whether an acquittal in a case of dishonour of cheque, instituted on a complaint, could be challenged at Sessions Court without the grant of special leave by the High Court. Article referred: http://www.livelaw.in/complainant-cheque-dishonour-case-cant-appeal-acquittal-sessions-court-calcutta-hc/

The Delhi High Court through Justice Vibhu Bakhru struck down a ‘non compete‘ clause in M/s Stellar Information Technology Private Ltd. Vs. Rakesh Kumar & Ors and decided in favour of the ex-employees who were restrained from carrying on their own business. The plaintiff is a private company engaged in the business of providing data recovery, data migration and data erasure solutions to its clients in India and abroad. They claimed that three of their former employees were stealing their confidential data, information, trade secrets and know how, and are now using the same for securing business from the plaintiff’s clients to run their own company called Techchef and contended that it was in breach of the “Confidentiality and Invention Assignment Agreement” and “Employee Confidentiality Agreement” entered into by the ex-employees with the plaintiff. The defendants were restricted only from engaging in competing business and that too for a limited time, which was held to be reasonab...

Citizens can claim compensation from the state if their complaints about noise pollution have gone unheard, the Bombay High Court (HC) said . A division bench of justice Abhay Oka and justice Amjad Sayed said the failure of law enforcement agencies in implementing noise pollution rules was a violation of a citizen’s fundamental right. The order, issued on August 16, was published on the court’s website on September 5. The court will hear the matter again on October 4 to discuss details about the compensation citizens can claim. Article referred: http://www.hindustantimes.com/mumbai-news/noise-troubles-seek-money-from-govt-hc/story-TfOywfBtSQoBkxaWUEEPxL.html

A professionally qualified woman should be able to take care of herself, the Delhi high court has said, denying maintenance demanded by a chartered accountant from her estranged husband. "The appellant/wife, who is a qualified chartered accountant and has been in the profession since 2003, need not be granted interim maintenance under Section 24 of the Hindu Marriage Act," a bench of Justices Pradeep Nandrajog and Pratibha Rani observed while rejecting her plea. Article referred: http://timesofindia.indiatimes.com/city/delhi/Delhi-HC-refuses-maintenance-to-working-woman/articleshow/54159899.cms

The Bombay high court has said it is inaccurate to suggest that merely viewing an illicit copy of a film is a punishable offence under the Copyright Act. "The offence is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright-protected material," Justice Gautam Patel said. He asked Internet Service Providers (ISPs) to drop the line "'viewing, downloading, exhibiting or duplicating' a particular film is a penal offence" from the 'error message' and directed them to display a more generic message on URLS to be blocked for infringement of copyright. Article referred:http://timesofindia.indiatimes.com/city/mumbai/Viewing-pirated-films-online-not-an-offence-Bombay-HC/articleshow/54009022.cms

Even if witnesses to a crime belong to a political faction that is opposed to the accused, their testimonies need not be discarded for that reason alone if otherwise acceptable, says the Kerala High Court. Article referred: http://timesofindia.indiatimes.com/city/kochi/Eyewitness-politics-not-a-bar-for-accepting-testimony-Kerala-HC/articleshow/54035797.cms

The Supreme Court in M/s. INDUSTRIAL PROMOTION & INVESTMENT CORPORATION OF ORISSA LTD. VS. NEW INDIA ASSURANCE COMPANY LTD. & ANR. has reiterated that Contract of Insurance should be construed strictly and it is only when there is any ambiguity or doubt the clause in the Policy, it should be interpreted in favour of the insured. In the instant case, the insurance policy provided cover against loss or damage by Burglary or House breaking i.e. (theft following an actual, forcible and violent entry of and/or exit from the premises). The Insurance Company rejected the claim of a company, stating that there is no forcible and violent entry. The insured company had preferred a complaint before MRTP commission, which rejected it. The company preferred appeal. Article referred: http://www.livelaw.in/contract-insurance-construed-strictly-sc/

The Supreme Court in M/S PARK STREET PROPERTIES (PVT) LTD.  VS. DIPAK KUMAR SINGH & ANR has held that the phrase ‘contract to the contrary’ in Section 106 of the Transfer of Property Act means a ‘valid contract’ and it cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. Apex Court Bench comprising of Justices V. Gopala Gowda and Adarsh Kumar Goel restored the Judgment of Trial Court which had decreed the suit of Landlords for recovery and Khas possession. Article referred: http://www.livelaw.in/phrase-contract-contrary-not-mean-parties-free-contract-express-provisions-law-sc/

In Punjab State Warehousing Corp v. Bhushan Chander, while d eciding the question as to whether an employee of a Public Sector Undertaking can be considered to be ‘Public servant’ under Section 197 CrPC, the bench of Dipak Misra and Shiva Kirti Singh, JJ held that the protection by way of sanction under Section 197 CrPC is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are ‘State’ within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government. Article referred: http://blog.scconline.com/post/2016/07/02/employee-of-a-public-sector-undertaking-not-a-public-servant-under-s-197-crpc/

In Vincent v. The State, the Hon'ble Madras High Court while setting aside the decision of the Court of Special Judge under the Prevention of Corruption Act, refusing the petitioner accused the right to recall an important witness for cross-examination, the Bench of Dr. P. Devadass, J., allowed the petitioners to recall the witness for cross-examination cautioning that the cross-examination should be completed as soon as possible and that deferring the same would not be permitted. However, taking the opportunity to ponder upon the conflict between an accused person’s constitutionally guaranteed right of defense, the duty of the State to punish the offenders and the plight of the victims/witnesses due to prolonged trials, the Court observed that a court should be magnanimous in protecting the rights of the accused, however it must ensure that this magnanimity does not become a headache for the victims of the offences and the witnesses, thereby resulting in failure of justice. Arti...

In Oriental Insurance Co. Ltd. v. Vikram Kanda, the Hon'ble National Consumer Disputes Redressal Commission decided that an insurance company can reject an insurance claim of a stolen vehicle on the ground that the vehicle was not duly registered, observed NCDRC while allowing a revision petition of Oriental Insurance Co. Ltd. vide which the Company challenged the order of Himachal Pradesh State Consumer Commission granting compensation to vehicle owner. Article referred: http://blog.scconline.com/post/2016/09/12/repudiation-of-claim-of-a-vehicle-on-the-ground-that-the-vehicle-was-not-duly-registered-proper/

In Kochi Salem Pipeline Pvt. Ltd. and Ors. v. Petroleum & Natural Gas Regulatory Board, the Hon'ble Appellate Tribunal for Electricity opined that unless there is fraud of beneficiary or irretrievable harm or injury, Courts are not to interfere with encashment of Bank Guarantees Appellant No. 1 a Joint Venture Company formed for specific purpose of constituting, commissioning and operating Kochi-Coimbatore-Erode-Salem LPG Pipeline. A consortium of Appellant No. 2 ("Bharat Petroleum Corporation Ltd. - BPCL") and Appellant No. 3 ("Indian Oil Corporation Ltd.-IOCL") with Appellant No. 2 as lead partner has been selected by Respondent Board for grant of authorization for said Pipeline. Letter of Intent issued by Respondent-Board in term of which Appellant No. 2 was directed to submit Performance Bond/Bank. Pursuant thereto Respondent Board issued a Letter of Authorisation ("LOA"). One of conditions in said LOA was that, entity was required to submit ...

In Make My Trip (India) Pvt. Ltd v. Union Of India & Ors., writ Petitions were filed by two entities operating on-line platforms/web portals raise important questions involving powers of Directorate General of Central Excise Intelligence (DGCEI) of arrest, investigation and assessment of service tax under provisions of the Finance Act, 1994. In both writ petitions, applications were filed for interim directions to restrain DGCEI from taking any coercive steps against the entities and their officers. Scheme of provisions of Finance Act 1994 (FA), do not permit DGCEI or for that matter Service Tax Department (ST Department) to by-pass procedure as set out in Section 73A (3) and (4) of Act before going ahead with arrest of a person under Sections 90 and 91 of Act. Power of arrest is to be used with great circumspection and not casually. It is not to be straightway presumed by DGCEI, without following procedure under Section 73A (3) and (4) of Finance Act, that a person has colle...

Willers v. Joyce and another United Kingdom 20.07.2016 Tort A person who suffers damage as a result of malicious prosecution of a civil suit against him is entitled to recover that damage Principal issue in instant appeal is relating to prosecution of civil proceedings in tort of malicious prosecution. Instant appeal is from a decision striking out a claim brought by Mr Peter Willers against Mr Albert Gubay as disclosing no cause of action known to English law. Mr Willers was Mr Gubay’s right hand man for over 20 years until he was dismissed in the summer of 2009. Mr Willers was a director of Langstone Leisure Ltd. In 2010 Langstone sued Mr Willers for alleged breach of contractual and fiduciary duties in causing it to incur costs in pursuing the Aqua directors. Mr Willers defended the action, and issued a third party claim for an indemnity against Mr Gubay, on grounds that he had acted under Mr Gubay’s directions in the prosecution of the Aqua claim. It is Mr Willers’ case ...