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2009 (5) TMI 982 - SUPREME COURT
Human Rights of Witnesses and Victims - Whether a person is qualified for protection from bodily injury and otherwise to assure the health, safety and welfare of that person - Gujarat Government constituted a five members Special Investigation Team ('SIT') - headed by Mr. R.K. Raghavan, former Director of the Central Bureau of Investigation - undertake inquiry/investigation - Petitions sought various reliefs including the transfer of some of the ongoing trials, and a reinvestigation/further investigation into the various incidents on the basis of which charges had been filed in these trials, this Court, in the first instance, granted a stay of these ongoing trials -
HELD THAT:- The reports of the SIT, in respect of each of these cases have now been received. We have considered the submissions made by Mr. Harish N. Salve, learned amicus curiae, Mr. Mukul Rohtagi, learned Counsel for the State, Ms. Indira Jaisingh and other learned Counsel.
It is an established fact that witnesses form the key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for justice to be done, the protection of witnesses and victims becomes essential, as it is the reliance on their testimony and complaints that the actual perpetrators of heinous crimes during the communal violence can be brought to book.
Further, in the case of Zahira v. State of Gujarat [2006 (3) TMI 729 - SUPREME COURT], while transferring what is known as the `Best Bakery Case', directed: "The State of Gujarat shall also ensure that the witnesses are produced before the concerned court, whenever they are required to attend them, so that they can depose freely without any apprehension of threat or coercion from any person. In case any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for by the State of Gujarat.
Since the protection of a witness is a paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to the SIT and the SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects and direct such police official/officials as it considers proper to provide the protection to the concerned person.
It shall be the duty of the State to abide by the direction of the SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. Therefore, we request the Hon'ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the concerned cases are to be held. The Designated Courts shall take up the cases in question.
Taking into account the number of witnesses and the accused persons and the volumes of evidence, it is open to the High Court to designate more than one court in a particular district. Needless to say that these cases shall be taken up by the Designated Court on a day-to-day basis and efforts shall be made to complete the trial with utmost expedition. The SIT shall furnish periodic reports if there is any further inquiry/investigation. The State of Gujarat shall also file a status report regarding the constitution of the courts in terms of the directions to be given by the Hon'ble Chief Justice of the High Court within three months. The matter shall be listed further as and when directed by this Court.
The following directions are given presently:
(i) Supplementary charge sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.
(ii) The conduct of the trials has to be resumed on a day-to-day basis - keeping in view the fact that the incidents are of January, 2002 and the trials already stand delayed by seven years. The need for early completion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
(iii) The SIT has suggested that the six "Fast Track Courts" be designated by the High Court to conduct trial, on day-to-day basis, in the five districts.
(iv) It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such "fast track courts", and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court.
(v) Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public prosecutor so appointed if any deficiency in performance is noticed.
If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by the SIT.
(vi) If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial. Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
(vii) The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this Court in regard to the smooth and satisfactory progress of the trials.
(viii) The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
(ix) For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court:
In case of witnesses following steps shall be taken:
(a) Ensuring safe passage for the witnesses to and from the court precincts.
(b) Providing security to the witnesses in their place of residence wherever considered necessary, and (c) Relocation of witnesses to another state wherever such a step is necessary.
(x) As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
(xi) In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
(xii) In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses.
(xiii) All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
(xiv) The SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order.
(xv) If there are any matters on which directions are considered necessary (including by way of change of public prosecutors or witness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
(xvi) It was apprehension of some learned Counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area.
(xvii) Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.
List after four months.
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2009 (5) TMI 981 - SUPREME COURT
Total stoppage of Mining Activity - Optimization of land and ecological degradation in an area admeasuring approximately 448 sq. kms. in the Aravalli Hill Range - Precautionary Principle - What should be the duration of such ban/stoppage? - HELD THAT:- In this Order what we are emphasising is extensive mining and not individual un-authorised mining because even in the case of former no steps to re-habilitate was ever taken. The result is that mining operations have been carried out on a disproportionate scale in the Aravalli Hill mainly in Gurgaon and Faridabad including Mewat in the State of Haryana. The satellite images indicate the devastation caused to the area by the extensive mining operations. Extraordinary situation demands extraordinary remedies. In the circumstances, we are of the view that mining operations should be immediately suspended in the above Area.
It is true that, complete ban was imposed on mining Aravalli hills vide Order dated 29/30.10.2002, which came to be modified by Order dated 16.12.2002 and it is equally true that, vide judgment in M.C. Mehta case [2004 (3) TMI 817 - SUPREME COURT], this Court observed that it was not suggesting a complete ban on mining operations so long as it is possible to undertake mining operations on the sustainable development principle (see para 57). At the same time, in paras 89 and 96(6) of the judgment dated 18.3.2004 this Court specifically suggested that if degradation of environment continues and reaches the stage of no return, this Court may consider closure of mining activities. In other words, a gateway was provided for this Court to impose the ban in future if degradation of environment becomes irreversible.
We make it clear that by this Order the ban will not be confined only to 5 km. but it would cover the entire Aravalli Hill range within the State of Haryana in which mining operations are being carried out. (i.e. area admeasuring approximately 448 sq. kms. falling in the Districts of Faridabad and Gurgaon including Mewat.)
Environment and ecology are national assets. They are subject to inter-generational equity. Time has now come to suspend all mining in the above Area on Sustainable Development Principle which is part of Articles 21, 48A and 51A(g) of the Constitution of India. In fact, these Articles have been extensively discussed in the judgment in M.C. Mehta's case (supra) which keeps the option of imposing a ban in future open. Mining within the Principle of Sustainable Development comes within the concept of "balancing" whereas mining beyond the Principle of Sustainable Development comes within the concept of "banning". It is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of Precautionary Principle.
At this stage, we may also note that under Section 13(2)(qq) of 1957 Act, Rules have been framed for rehabilitation of flora and other vegetation destroyed by reason of any prospecting or mining operations. Under Section 18 of the 1957 Act, Rules have been framed for conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling pollution caused by prospecting or mining operations which also form part of Mineral Concession Rules, 1960 and Mineral Conservation and Development Rules, 1988.
Under Rule 27(1)(s)(i) of Mineral Concession Rules, 1960 every lessee is required to take measures for planting of trees not less than twice the number destroyed by mining operations. Under Mineral Conservation and Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation and rehabilitation of lands are made for every holder of prospecting licence or mining lease to be undertaken and that work has to be completed by the lessee/licensee before abandoning the mine or prospect. Similarly, under Rule 37 of Mineral Conservation and Development Rules, 1988 the lessee/licensee has to calibrate the air pollution within permissible limits specified under EP Act, 1986 as well as Air (Prevention and Control of Pollution) Act, 1981.
We hereby suspend all mining operations in the Aravalli Hill Range falling in the State of Haryana within the area of approximately 448 sq. kms. in the Districts of Faridabad and Gurgaon including Mewat till Reclamation Plan duly certified by State of Haryana, MoEF and CEC is prepared in accordance with the statutory provisions contained in various enactments enumerated as well as in terms of the Rules framed thereunder and the Guidelines. The said Plan shall state what steps are needed to be taken to rehabilitate (including reclamation) followed by Status Reports on steps taken by the Authorities pursuant to the said Plan.
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2009 (5) TMI 980 - SUPREME COURT
Power of a court u/s 319 - application of prosecution u/s 319 of the Code - summon issued for trial of offences u/s 148/302 r/w Section 149 of the Indian Penal Code - HELD THAT:- Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.
The observation of this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi [1982 (12) TMI 218 - SUPREME COURT] and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction u/s 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.
We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the matter afresh.
The appeals are allowed with the aforementioned directions.
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2009 (5) TMI 979 - DELHI HIGH COURT
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... ... ..... .07.2008 may be modified in terms of interim arrangement contained in the above referred agreement dated 15.05.2009 and this modification, according to them, should hold good till the decision of these applications relating to interim relief. Having regard to the submissions made by the counsel for the parties, the interim order passed by this Court on 28.07.2008 is substituted with the interim arrangement agreed upon between the parties vide agreement dated 15.05.2009 and this interim order will continue till the decision of IAs No. 8586/2008 and 9068/2008. List these applications for hearing on 30.07.2009.
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2009 (5) TMI 978 - ALLAHABAD HIGH COURT
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... ... ..... akalatnama on behalf of Kotak Mahindra Bank Ltd., opposite party No. 4, thus, State Bank of India and Kotak Mahindra Bank Ltd. have jointly contested the matter before this Court. 84. In the result, the writ petition succeeds and is hereby allowed. The deed of assignment dated 16.1.2006, a copy of which is annexed as Annexure-1 to the writ petition, so far as it relates to transfer of the assets of M/s. Helios Confectionery Private Ltd. by the State Bank of India in favour of Kotak Mahindra Bank Ltd. is hereby quashed. A writ of mandamus is issued directing the opposite parties 1 to 3 to accept and adjust the amount of ₹ 195 lakhs deposited by M/s. Helios Confectionery Private Ltd. with the State Bank of India on 5.5.2009 towards one time settlement offer of M/s. Helios Confectionery Private Ltd. and the State Bank of India shall release the charge on the property of M/s. Helios Confectionery Private Ltd. 85. Under the circumstance, there shall be no order as to costs.
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2009 (5) TMI 977 - SUPREME COURT
Justiciability of the recommendations of the Chief Justice of Madras High Court for appointment of Shri N. Kannadasan (the appellant) as the President of the State Consumer Disputes Redressal Commission (`the Commission') in terms of Section 16 of the Consumers Protection Act, 1986 (`the Act') question involved herein - Interpretation of sec 16 of the Act - appellant was an Advocate practicing in the Madras High Court He was appointed as an Additional Judge of the said Court for a period of two years - During his tenure as an Additional Judge a representation was made from the Members of the Bar alleging lack of probity against him - he was not appointed as a Permanent Judge as a result whereof demitted his office - He resumed practice in Madras High Court - the Government of India by its letter replied that he be treated at par with the retired Judges of the High Court for the purposes of obtaining medical benefits but would not be entitled to any pensionary benefits - In the meantime on or about, he was appointed as an Additional Advocate General of the State of Madras - Appellant name was included in the list of retired Judges -
Before the post of President of the Commission fell vacant, the Government of Tamil Nadu requested the Registrar General of the High Court to forward names of eligible candidates for appointment as President of the Commission - The said post, however, fell vacant only - The Government of Tamil Nadu appointed Shri Kannadasan as the president of the Commission -
HELD THAT:- The words "is or has been" refer to the person holding the office of a Judge or who has held the said office. It may be said to have the same meaning so far as eligibility is concerned.
Suitability of a person to be considered for appointment as a Chairman of a State Commission having regard to the provisions contained in Article 217 of the Constitution of India has been assumed by this Court to be available for the eligible persons who are retired Judges which would mean that those Judges who had retired from service without any blemish whatsoever and not merely a person who "has been a judge".
If the Collegium of the Supreme Court Judges including the Chief Justice of India, which is a constitutional authority in the matter of appointment of Judges and re-appointment of Additional Judges did not find him eligible, it would be beyond anybody's comprehension as to how Chief Justice of a High Court could find him eligible/suitable for holding a statutory post requiring possession of qualification of holder of a constitutional office. If no recommendation by the Chief Justice is constitutionally permissible, the question of the eligibility criteria being not satisfied certainly is relevant.
We have perused the records ourselves. We are satisfied that it was necessary for the Chief Justice of the High Court to apprise himself the reasons with reference to the backdrop of events as to why the collegium of the Supreme Court of India did not find the appellant to be a fit person for re-appointment or made a Permanent Judge. Names of eight persons were recommended together. A large number of vacancies existed. Six of them were recommended to be appointed as Permanent Judges.
We say so for more than one reason. Section 16(1)(b)(iii) in relation to appointment of a Member of the Commission lays down inter alia the qualifications of a person of ability, integrity and standing. If in the case of a Member, ability, integrity and standing are essential qualifications, it is difficult to perceive why the same qualification is not required for appointment as Chairman of the Commission within the meaning of Clause (a) thereof. The said criteria was not necessary to be expressly stated as the same could be presumed as recommendation in that behalf, to be made by the Chief Justice of a High Court.
CONSULTATION - Whether the consultative process required to be gone into for the purpose of appointment of Chairman, State Commission was complied with - Appointment to the post of President of a State Commission must satisfy not only the eligibility criteria of the candidate but also undertaking of the process of consultation.
The consultative process brings within its ambit a heavy duty so as to enable the holder of a high office like Chief Justice to know the same. It must be shown that he had access and in fact was aware of the fact that the appellant had not been made a Permanent Judge. The matter might have been different if such a fact had been taken into consideration.
If a decision for the purpose of making a recommendation in terms of proviso appended to Section 16 necessitates looking into all relevant materials, non- consideration of such a vital fact, in our opinion, cannot be ignored as the opinion is a subjective one and not based on objective criteria. We are more than sure that had the records been brought to his notice, the Chief Justice would not have made the recommendation.
Judicial Review - Judicial review in our constitutional scheme itself is a part of its basic structure. Decisions whether arrived at by the Executive or the Judiciary are subject to judicial review. We have noticed hereinbefore that the Madras High Court maintains a register of retired Judges. Attention of the Chief Justice was drawn only to the said register. Names of five Judges were proposed.
It will also not be correct to contend that as non-appointment of the appellant did not cast a stigma, such a fact was not necessary to be noticed. We have noticed S.P. Gupta [1981 (12) TMI 165 - SUPREME COURT] that where facts are brought to the notice of the court, whether by way of affidavit by the constitutional authorities or by placing before the court the entire material, it is permissible to delve deep into the matter.
Once, thus, decision making process had been undergone in terms of the constitutional scheme in its correct perspective, judicial review may not be maintainable.
QUO WARRANTO - Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions.
We have found hereinbefore that the appellant was not eligible for appointment of a public office and in any event the Processual machinery relating to consultation was not fully complied.
PANEL - We have noticed hereinbefore that the State of Tamil Nadu in its letter dated 30th May, 2008 addressed to the Registrar of the Madras High Court while intimating that a vacancy had arisen in the post of President, State Commission, made a request to him to send a panel of eligible names of retired High Court Judges after approval by Hon'ble the Chief Justice of the High Court of Madras for its consideration therefore.
Pursuant thereto or in furtherance thereof, the Chief Justice only forwarded a panel of three Judges. The Executive Government of the State made a final choice therefrom.
Having regard to processual mandate required for the purpose of appointment to the post of Chairman, State Commission, the Executive Government of the State cannot have any say whatsoever in the matter. The process for preparation of a panel requested by the Executive Government of the State and accepted by the Chief Justice of the High Court, in our opinion, was impermissible in law. If the State is granted a choice to make an appointment out of a panel, as has been done in the instant case, the primacy of the Chief Justice, as opined by this Court in the aforementioned decisions, would stand eroded.
It will bear repetition to state that even for the said purpose the procedure laid down by this Court in Supreme Court Advocates-on-Record Association (supra) as also the Special Reference, for recommendation of the name of the High Court Judge, as contained in Article 217 of the Constitution of India, should be followed. It is accepted at the Bar that by reason of judicial constitutional interpretation of Articles 217 and 124 of the Constitution of India, the procedures laid down thereunder has undergone a drastic change. A recommendation instead and in place of Chief Justice of India must emanate from the Collegium. However, for the purpose of making recommendation in terms of Section 16(1) the opinion of the Chief Justice alone shall prevail.
It is true that if a panel of names is suggested and the State makes an appointment of one out of the three, the question of meeting of mind between the Chief Justice and the Executive would not arise but there cannot be any doubt whatsoever that by reason thereof the ultimate authority to appoint would be the Executive which in view of the decisions of this Court would be impermissible.
We have, therefore, no hesitation in holding that the process adopted by the High Court and the Chief Justice in asking for a panel of name and sending the same was not legally permissible.
Conclution - The summary of our discussions is as under:
(i) Judicial review although has a limited application but is not beyond the pale of the superior judiciary in a case of this nature.
(ii) The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose.
(iii) For the purpose of interpretation of Constitution in regard to the status of an Additional Judge, the word "has been" would ordinarily mean a retired Judge and for the purpose of examining the question of eligibility, not only his being an Additional judge but also a qualification as to whether he could continue in the said post or he be appointed as an acting or ad hoc judge, his suitability may also be taken into consideration.
(iv) Section 16 of the Act must also be given a contextual meaning. In a case of this nature, the court having regard to the wider public policy as also the basic feature of the Constitution, viz., independence and impartiality of the judiciary, would adopt a rule of purposive interpretation instead of literal interpretation.
(v) Due consultative process as adumbrated by this Court in various decisions in this case having not been complied with, appointment of Shri Kannadasan was vitiated in law.
(vi) The Government of the State of Tamil Nadu neither could have asked the High Court to send a panel of names of eligible candidates nor the Chief Justice of the High Court could have sent a panel of names of three Judges for appointment to the post of Chairman, State Commission.
Before parting, however, we would place on record that Mr. Ramamurthy, learned Counsel on 5.5.2009 filed a memorandum before us stating that the appellant Shri N. Kannadasan has submitted his resignation. It is, however, not stated that the said offer of resignation has been accepted by the State of Tamil Nadu. Moreover, there is no prayer for withdrawal of the special leave petition.
We, in the aforementioned situation, are proceeding to pronounce our judgment. We must also place on record our deep appreciation for the learned Counsel for the parties and in particular Shri G.E. Vahanvati, the learned Solicitor General of India for rendering valuable assistance to us.
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2009 (5) TMI 976 - BOMBAY HIGH COURT
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... ... ..... r may be the reason, admittedly the construction project is not yet commenced in full force, in the sense that out of 62 kms. of proposed road land, about 4 km. land could be provided, as alleged. The case of the respondent is that about 19 kms of land has been handed over to the petitioner. 13. Even otherwise, if, according to the petitioner, the respondent has terminated the contract illegally and in breach of the various clauses of the agreement, that can be considered by the arbitral Tribunal which is likely to be constituted. The petitioner has already nominated an Arbitrator. In such cases where compensation/damages is also an aspect which the Court/tribunal need to consider while considering to grant any injunction as sought in the present matter, I am inclined to observe that a remedy of compensation/damages is available to he petitioner, but not the relief of injunction as prayed. 14. Resultantly, ad-interim relief as prayed is rejected. 15. S.O. to 17th June, 2009.
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2009 (5) TMI 975 - SUPREME COURT
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... ... ..... d with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. Section 6 of the Evidence Act, in the facts and circumstances of the case, insofar as admissibility of a statement of PW-4 and PW-5 about what the deceased had told them against the accused of the treatment meted out to her is concerned, is not at all attracted. 17. We hold, as it must be, that there is not an iota of evidence which can be admitted in law to be used against the appellant for the offence punishable under Section 498A, IPC. 18. Consequently, the appeal has to be allowed and is allowed and the conviction and sentence passed on the appellant under Section 498A, IPC is set aside. The accused be released forthwith, if not required in any other case.
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2009 (5) TMI 974 - DELHI HIGH COURT
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... ... ..... tration of such associations/bodies. The plaintiff admittedly in the trade of buying of Palm Oil, is presumed to know that all transactions are subject matter of arbitration of the defendant No. 2. The plaintiff now cannot be permitted to thwart/frustrate the arbitration by institution of the present suit. 21. Though the reliefs in prayer paragraph (c) of declaration with respect to the agreements as distinct from the relief of declaration qua the arbitration agreement strictly would not be covered by the law discussed above but in my view no purpose would be served in confining the suit to the said relief and issuing notice to the defendant No. 1 only qua the same inasmuch as the defendant No. 1 having already initiated arbitration proceedings and the same having been pleaded by the plaintiff himself, the alternative remedy for seeking the said relief is also found to be the arbitral tribunal only. 22. The suit as filed is thus found to be not maintainable and is dismissed.
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2009 (5) TMI 973 - SUPREME COURT
Commission of Offence Punishable u/s 409, 420, 461 and 468 IPC - framing of wrong charges - appropriate questions not put while the accused was examined u/s 313 - Question of authority of the person granting sanction - nature of power exercised by the Court u/s 197 - Ld Counsel for the appellant submitted that no part of the alleged offence is protected u/s 197 of the Code, and the effect of Section 464 of the Code has to be seen.
Prior to examining whether the Courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the Court u/s 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions.
HELD THAT:- For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section 197 has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary.
But if the same officer commits an act in course of service but not in discharge of his duty then the bar u/s 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari [1955 (10) TMI 3 - SUPREME COURT].
If on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then the act must be held as official to which applicability of Section 197 of the Code cannot be disputed.
The contention of the respondent that for offences u/s's 406 and 409 r/w Section 120B of IPC sanction u/s 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. It was held in Harihar Prasad, etc. v. State of Bihar [1971 (9) TMI 186 - SUPREME COURT] as follows:
''As far as the offence of criminal conspiracy punishable u/s 120B, r/w Section 409, IPC is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the CrPC. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction u/s197 of the CrPC is, therefore, no bar.''
The error in charge also does not vitiate the order. Finally, it is submitted that the question relating to Section 313 of the Code loses significance when considered in the background as to whether there was any need for sanction.
Apparently the first Appellate Court and the High Court have not kept this aspect in view.
As the provision itself mandates that no finding sanction or order by a court of competent jurisdiction becomes invalid unless it is so that a failure of justice has in fact been occasioned because of any error omission or irregularity in the charge including in misjoinder of charge.
Obviously, the burden is on the accused to show that in fact failure of justice has been occasioned. We set aside the impugned order of the High Court and direct that leave to appeal shall be granted and the appeal shall be heard on merits. We make it clear that we have not expressed any opinion on the merits of the case which shall be decided in the appeal before the High Court.
The appeal is allowed.
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2009 (5) TMI 972 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... 500 shares to respondent No. 4 being illegal is hereby cancelled. Resolutions in this regard are set aside. Status quo ante as on March 31, 2006, is hereby restored. The statements sent to the Registrar of Companies are declared as null and void. The petitioners' group holding 51 per cent shareholding be given equal representation on the board of respondent No. 1 company. (IV) The shifting of the registered office of the company is hereby held as illegal. The registered office of the company shall continue to be where it was at the time of incorporation. The statements sent to the Registrar of Companies are hereby declared as null and void. (V) The bank accounts of the company be operated with joint signatures of at least one director each from the petitioners' group and the respondents' group.” 39. Company Petition No. 189 of 2007 is hereby disposed of in the above 39 terms. All CAs stand disposed of. All interim orders stand vacated. No order as to costs.
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2009 (5) TMI 971 - SC ORDER
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... ... ..... ereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the bank. Accordingly, the appeal is allowed, impugned order passed by the High Court is set aside and the writ petition filed before it is dismissed.
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2009 (5) TMI 970 - SC ORDER
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... ... ..... Delay condoned. The Civil Appeal is dismissed.
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2009 (5) TMI 969 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... spondent No. 1 company. To end the matters complained of and in the interest of the respondent No. 1 company wherein 25 per cent, shareholder has not been given any representation on the board so far, to do substantial justice between the parties, I hereby direct respondents Nos. 2 to 4 to buy the shares of the petitioner at ₹ 500 per share and let him move out of the company enabling the respondents to manage the affairs of the company smoothly or the respondents may make respondent No. 1 company to purchase the shares of the petitioner at the same rate by respondent No. 1 company with consequent reduction in share capital or else respondents Nos. 2 to 4 are at liberty to sell their shareholding to the petitioner at ₹ 500 per share within two months of receipt of this order. 47. Company Petitions Nos. 32 of 1999 and 31 of 2003 stand disposed of in the above terms. All company applications stand disposed of. All interim orders stand vacated. No order as to costs.
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2009 (5) TMI 968 - DELHI HIGH COURT
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... ... ..... etion of the learned MM to form an opinion if a presumption of service should be drawn. If the complainant chooses to file an affidavit, the deponent should state that he either went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the address and yet refusing to accept the notice. If the affidavit merely states that the accused is residing at the address without giving any further documentary proof in support thereof such an affidavit cannot be accepted as satisfying the requirement of Section 138 (b) read with Section 138 (c) of the NI Act 31. For the aforementioned reasons, it is held that no error was committed by the learned MM in rejecting the complaint in the instant case. 32. For the aforementioned reasons, there is no merit in this petition and it is dismissed as such but in the circumstances with no orders as to costs.
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2009 (5) TMI 967 - SUPREME COURT
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... ... ..... ivil Court by which property whether immovable or moveable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be. 12. On the facts of the case it cannot be said that Section 47-A has any application because there is no scope for entertaining a doubt that there was any under valuation. That being so, the High Court’s order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as there is no basis for even entertaining a belief that the market value of the property which is the subject matter of conveyance has not been truly set forth with a view to fraudulently evade payment of proper stamp duty. 13. The appeal is allowed. There will be no order as to costs.
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2009 (5) TMI 966 - SUPREME COURT
Non granting interest on the amount of the Award - from the date of the incident or from the date of filing of the claim petition till actual payment of the awarded sum - Held that:- The Courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. Accordingly, payment of interest follows as a matter of course when a money decree is passed. The only question to be decided is since when is such interest payable on such a decree.
In the instant case, the claim for compensation accrued on 13th November, 1998, when Kunhi Moosa, the husband of the Appellant No.1, died on account of being thrown out of the moving train. The claim before the Railway Claims Tribunal, Ernakulam, (O.A.No.68/1999) was filed immediately thereafter in 1999. There was no delay on the part of the claimants/appellants in making the claim, which was ultimately granted for the maximum amount of ₹ 4 lakhs on 26th March, 2007. Even if, the appellants may not be entitled to claim interest from the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, since the appellant cannot be faulted for the delay of approximately 8 years in the making of the Award by the Railway Claims Tribunal. Had the Tribunal not delayed the matter for so long, the appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants.
Both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims.
We, therefore, allow the appeal and modify the order of the High Court dated 24.5.2007 affirming the order of the Trial Court and direct that the awarded sum will carry interest @6% simple interest per annum from the date of the application till the date of the Award and, thereafter, at the rate of 9% per annum till the date of actual payment of the same.
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2009 (5) TMI 965 - COMPANY LAW BOARD
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... ... ..... at the second petitioner has admitted his signatures on the share transfer forms and the resignation letter dated August 16, 2006, in pursuance of the agreement dated August 16, 2006 and hence the veracity of the signatures on the reverse side of the share certificates has no relevance to the share transfer having been effected in pursuance of the agreement. Hence, I negate the allegation of illegal and fraudulent transfer of shares as levelled by the petitioners. In view of my forgoing reasons, the petitioners are not entitled to any relief and the company petition is devoid of merits and liable to be dismissed. Hence, the company petition is dismissed. No order as to costs. Any interim orders as on date stands vacated. All the applications pending as on date stand disposed of. The registry shall return the two share transfer forms, two share certificates, one resignation letter, and one board minutes all in original to the concerned respondents under proper acknowledgment.
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2009 (5) TMI 964 - DELHI HIGH COURT
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... ... ..... come Tax Appellate Tribunal was justified in holding that media cost paid for the import of a master copy of Oracle Software used for duplication and licensing is an expenditure of a capital nature and as such is not an allowable deduction Paper books be filed as per High Court Rules. List alongwith ITA Nos 287/2008 and 683/2009.
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2009 (5) TMI 963 - SC ORDER
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... ... ..... is only ₹ 80,000/-, keeping the question of law open, Civil Appeal is dismissed.
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