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1995 (1) TMI 423
The Supreme Court allowed the appeals, set aside the judgments and orders under appeal, and dismissed the applications filed by the respondents under Section 20 of the Arbitration Act as they were time-barred. No costs were awarded.
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1995 (1) TMI 422
Issues Involved:
1. Determination of liability for the accident.
2. Assessment of compensation for the appellant's injuries and disabilities.
3. Evaluation of the claims against insurance companies.
4. Calculation of interest on the awarded compensation.
5. Consideration of non-pecuniary losses.
Issue-wise Detailed Analysis:
1. Determination of Liability for the Accident:
The judgment addressed the liability arising from a collision between an Ambassador car and a motor lorry. The appellant claimed that the accident was caused by the rash and negligent driving of both vehicles. The Tribunal and the High Court found that both drivers were indeed driving in a rash and negligent manner, resulting in composite negligence. As a result, both the owners and insurers of the vehicles were held liable for the damages caused to the appellant. The evidence showed that the car had moved to the wrong side of the road, supporting the finding of negligence.
2. Assessment of Compensation for the Appellant's Injuries and Disabilities:
The appellant, a practicing advocate, became paraplegic due to the accident, resulting in 100% disability. The Tribunal initially awarded Rs. 26,25,992 as compensation, which the High Court reduced to Rs. 8,57,352. The Supreme Court emphasized that compensation must cover both pecuniary and non-pecuniary damages. Pecuniary damages include medical expenses and loss of earnings, while non-pecuniary damages account for pain, suffering, and loss of amenities. The Court acknowledged the difficulty in quantifying compensation for such severe injuries but stressed that the award should reflect the appellant's loss of a normal life.
3. Evaluation of the Claims Against Insurance Companies:
The car was insured by New India Assurance Company Limited, and the lorry by Oriental Fire and General Insurance Company Limited. The insurers argued that their liability was limited to the terms of their policies. The Tribunal held the insurers liable for compensation, with New India Assurance directed to pay the full amount on behalf of the car's owner. The Supreme Court upheld this finding, emphasizing the insurers' responsibility under the terms of their policies.
4. Calculation of Interest on the Awarded Compensation:
The High Court reduced the interest rate from 12% to 6% per annum. The Supreme Court modified this decision, clarifying that interest should not be payable on amounts allocated for future expenditures. Interest is applicable only on the compensation amount due at the time of the award, not on future expenses.
5. Consideration of Non-Pecuniary Losses:
The appellant claimed Rs. 3,00,000 each for pain and suffering and for loss of amenities of life, which the High Court reduced to Rs. 1,00,000. The Supreme Court recognized the appellant's significant deprivation due to the accident, considering his profession and the impact on his lifestyle. The Court increased the compensation for non-pecuniary losses to Rs. 1,50,000 for each head, totaling Rs. 3,00,000.
Conclusion:
The Supreme Court partially allowed the appellant's appeal, enhancing the compensation awarded by the High Court. It emphasized the need for a fair assessment of both pecuniary and non-pecuniary damages, reflecting the appellant's severe injuries and the impact on his life. The interest calculation was adjusted to exclude future expenditures, and the liability of the insurers was upheld according to their policy terms. The Special Leave Petition filed by M/s. Pest Control (India) Pvt. Ltd. was dismissed, affirming the enhanced compensation awarded to the appellant.
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1995 (1) TMI 421
The Supreme Court dismissed the special leave petition challenging the blacklisting of a petitioner for failing to enter into a contract to supply steel despite receiving acceptance from the respondents. The Court held that the respondents' actions were justified and consistent with natural justice, and the High Court was right in refusing to interfere with the blacklisting order. The petition was dismissed.
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1995 (1) TMI 420
Issues Involved:
1. Communication of grounds of arrest under Section 50(1) Cr. P. C. and Article 22(1) of the Constitution.
2. Validity of subsequent remand orders under Sections 167, 209(b), and 309 Cr. P. C.
3. Issuance of writ of habeas corpus based on initial illegality of detention.
4. Jurisdiction and authority of committing Magistrate and Sessions Judge.
Issue-wise Detailed Analysis:
1. Communication of Grounds of Arrest:
- The petitioners, Vimal Kumar Sharma and Sanjai Bahal, claimed that they were not informed of the grounds of their arrest, violating Section 50(1) Cr. P. C. and Article 22(1) of the Constitution.
- The court examined the object of Article 22(1) and Section 50(1) Cr. P. C., emphasizing that the grounds of arrest must be communicated "as soon as may be," not necessarily immediately.
- The court considered affidavits from police officers stating that the grounds of arrest were communicated to the petitioners. The affidavits supporting the petitions were found insufficient as they were based on legal advice or records, not personal knowledge.
- The court concluded that the grounds of arrest were communicated to both petitioners, rejecting their contention of non-compliance with Section 50(1) Cr. P. C. and Article 22(1) of the Constitution.
2. Validity of Subsequent Remand Orders:
- The court analyzed whether a writ of habeas corpus could be issued if there were initial violations of the law during arrest, but subsequent valid remand orders were passed.
- The court cited precedents, including Federal Court and Supreme Court rulings, stating that habeas corpus proceedings focus on the legality of detention at the time of the hearing, not at the time of arrest.
- The court found that both petitioners were detained under valid remand orders passed by competent Magistrates and Sessions Judges under Sections 167, 209(b), and 309 Cr. P. C.
- It was held that subsequent valid remand orders cure any initial illegality in detention.
3. Issuance of Writ of Habeas Corpus:
- The court discussed whether habeas corpus could be issued based on initial illegality in arrest or detention.
- It was emphasized that habeas corpus proceedings address the legality of detention at the time of the hearing. If valid remand orders exist, the writ cannot be granted.
- Reference was made to the Supreme Court's view that subsequent valid orders of remand cannot be invalidated by initial procedural defects.
4. Jurisdiction and Authority of Committing Magistrate and Sessions Judge:
- The court examined the jurisdiction of Magistrates and Sessions Judges in passing remand orders.
- It was clarified that under Section 209(b) Cr. P. C., a Magistrate's remand order remains valid until the conclusion of the trial.
- The court overruled a contrary view that fresh remand orders were required once the trial commenced under Section 309 Cr. P. C.
- It was held that the committing Magistrate's order under Section 209(b) Cr. P. C. authorizing detention until the conclusion of the trial is valid and sufficient.
Conclusion:
- The court dismissed both habeas corpus petitions, finding no merit in the claims of non-communication of arrest grounds or invalidity of subsequent remand orders.
- It was concluded that the petitioners' detention was lawful under valid remand orders, and any initial procedural defects did not warrant their release through habeas corpus.
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1995 (1) TMI 419
Issues:
1. Determination of compensation for acquired land and fruit-bearing trees separately.
2. Applicability of suitable multiplier for compensation calculation.
3. Error in enhancing compensation by the High Court based on Price Index.
Detailed Analysis:
1. The case involved an appeal arising from a judgment of the High Court regarding the acquisition of land for a residential colony. The Land Acquisition Collector awarded compensation for the acquired land and fruit-bearing trees separately. The High Court, on appeal, confirmed the market value of the land but enhanced the compensation for the fruit-bearing trees by 60%, leading to the current appeal before the Supreme Court.
2. The main contention raised by the appellant was that the High Court erred in determining compensation separately for the land and fruit-bearing trees. The Supreme Court reiterated the settled principle that compensation should be awarded based on the value of the acquired land, including any benefits derived from it. The market value is determined considering the yield, and a suitable multiplier should be applied to calculate the compensation. The court emphasized that the compensation cannot be based on the nature of the land and fruit-bearing trees separately.
3. The Supreme Court highlighted that the appropriate multiplier for determining compensation based on yield from trees or plantation should not exceed 8 years, as established in previous decisions. In this case, both the Collector and the High Court applied multipliers exceeding 8 years, resulting in an excessive award of compensation. The High Court's decision to enhance compensation by 60% based on the Price Index was deemed illegal, as it deviated from established legal principles.
4. Ultimately, the Supreme Court allowed the appeals, setting aside the High Court's judgment and affirming the award and decree of the reference Court. The Court directed the parties to bear their own costs, emphasizing the importance of applying the correct legal principles in determining compensation for acquired land and fruit-bearing trees.
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1995 (1) TMI 418
Issues Involved:
1. Whether a petition under Section 482 Cr.P.C. is maintainable to recall or cancel a non-bailable warrant in view of the specific provision under Section 70(2) Cr.P.C.
2. The scope and ambit of inherent powers of the High Court under Section 482 Cr.P.C.
3. The interplay between Section 482 Cr.P.C. and Section 70(2) Cr.P.C. regarding non-bailable warrants.
Issue-wise Analysis:
1. Maintainability of Petition under Section 482 Cr.P.C.:
The primary issue was whether the High Court has the power under Section 482 Cr.P.C. to recall or cancel non-bailable warrants issued by Magistrates/trial courts, given the specific provision under Section 70(2) Cr.P.C. The petitioners argued that the inherent powers of the High Court under Section 482 Cr.P.C. are wide and can be exercised notwithstanding the specific provisions under Section 70(2) Cr.P.C. They cited various Supreme Court rulings to support their contention that the inherent powers of the High Court are preserved and can be exercised to render justice even in the absence of specific provisions in the Code.
2. Scope and Ambit of Inherent Powers under Section 482 Cr.P.C.:
The petitioners' counsel cited several Supreme Court rulings to emphasize the wide scope of the inherent powers under Section 482 Cr.P.C. For instance, in *Raj Kapoor v. State (Delhi) Administration*, the Supreme Court noted that "nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482." Similarly, in *V.C. Shukla v. State*, the Supreme Court held that the inherent power of the High Court is to pass orders ex-debito justitiae to prevent abuse of the process of the Court or to secure the ends of justice. The inherent power is not to be exercised capriciously but in appropriate cases to do real and substantial justice. The Supreme Court in *Madhu Limaye v. State of Maharashtra* and other cases laid down principles that the inherent power should not be resorted to if there is a specific provision in the Code for the redress of the grievance, and it should be exercised sparingly to prevent abuse of process or to secure the ends of justice.
3. Interplay between Section 482 Cr.P.C. and Section 70(2) Cr.P.C.:
The Public Prosecutor argued that Section 70(2) Cr.P.C. provides a specific remedy for the cancellation of non-bailable warrants, and hence, petitions under Section 482 Cr.P.C. are not maintainable. The Public Prosecutor cited the ruling in *P.A. Saleem v. State* where it was held that the inherent power under Section 482 Cr.P.C. should not be used to recall warrants when there is a specific provision under Section 70(2) Cr.P.C. The court observed that the inherent power under Section 482 Cr.P.C. is to be exercised sparingly and only when no other remedy is available.
Judgment:
The court concluded that while the inherent powers under Section 482 Cr.P.C. are wide and preserved, they should be exercised with self-imposed restraint. The court emphasized that the inherent power should not be used to circumvent specific provisions like Section 70(2) Cr.P.C., which provides a remedy for the cancellation of non-bailable warrants. The court directed the petitioners to file appropriate petitions for cancellation of the non-bailable warrants before the concerned Magistrates/trial courts under Section 70(2) Cr.P.C. within three weeks. The Magistrates/trial courts were directed to dispose of these petitions on merits and in accordance with law. The court also allowed the petitioners to file these petitions without personally appearing before the court to avoid immediate remand to judicial custody.
Conclusion:
The petitions under Section 482 Cr.P.C. were dismissed with directions to the petitioners to seek remedy under Section 70(2) Cr.P.C. before the concerned courts. The court reiterated the wide scope of inherent powers under Section 482 Cr.P.C. but emphasized the need for self-imposed restraint and adherence to specific provisions in the Code.
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1995 (1) TMI 417
Issues Involved
1. Criminal liability of the accused for deaths and injuries caused by adulterated liquor.
2. Vicarious liability of partners in the firm.
3. Proof of conspiracy among the accused.
4. Applicability of Sections 326, 328, and 272 of the Indian Penal Code (IPC).
5. Competency to issue the rule of enhancement of sentences.
Issue-wise Detailed Analysis
1. Criminal Liability of the Accused
The case involved a hooch tragedy during Onam 1982, where 70 people died, and 24 lost their eyesight after consuming adulterated liquor from shops catered by "Bee Vee Liquors." The police charged ten persons under various sections of the IPC and the Kerala Abkari Act. The Sessions Judge acquitted some accused but convicted others under Sections 120B, 328, 107, 109, and 272 read with Section 34 of the IPC. The Kerala High Court upheld these convictions and further convicted the accused under Section 326 read with Sections 120B, 107, and 109.
2. Vicarious Liability of Partners in the Firm
The principal argument was that the accused could not be held vicariously liable for the firm's misdeeds. The court noted that the partners in active management were directly involved in the adulteration of liquor. The High Court found sufficient evidence that accused 1, 2, 3, and 10 were actively managing the firm, thereby dismissing the argument against vicarious liability.
3. Proof of Conspiracy Among the Accused
The High Court concluded that there was a conspiracy among the accused based on the evidence of several witnesses. The Court noted that conspiracies are often proved by circumstantial evidence, given their secretive nature. The evidence pointed to a clear motive for wrongful gains from adulteration, which the High Court described as a "huge profit-making" venture. The Court found that the magnitude of the illegal act and the active management by the accused demonstrated a meeting of minds to undertake the illegal act.
4. Applicability of Sections 326, 328, and 272 of the IPC
The court upheld the convictions under Sections 326 and 328, noting that the accused had the requisite knowledge that the adulterated liquor could cause serious harm. The argument that the hurt caused was not "grievous" was rejected, as the permanent loss of eyesight for 24 individuals constituted "grievous hurt" under Section 320 of the IPC. The court also upheld the conviction under Section 272 for adulteration.
5. Competency to Issue the Rule of Enhancement of Sentences
The court examined whether it had the competency to issue a rule of enhancement. The court concluded that it had the power to issue such a rule under Article 136 of the Constitution, which vests plenary jurisdiction in the Supreme Court. The court also noted that Article 142 would provide sufficient power to pass an order for enhancement if necessary for doing complete justice. The court decided to enhance the sentences due to the enormity of the consequence of the accused's actions, which resulted in 70 deaths and 24 individuals losing their eyesight.
Conclusion
The Supreme Court dismissed the appeals and enhanced the sentences of all the accused to life imprisonment under Section 326 of the IPC. The court directed the trial court to issue warrants for the arrest of the appellants and the concerned District Magistrate and Superintendent of Police to execute the warrants.
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1995 (1) TMI 416
The Supreme Court allowed the appeal by Special Leave, stating that the respondent was not entitled to an alternative site as he was not the owner of the land at the time of the Notification under Section 4(1) of the Land Acquisition Act. The Court quashed the direction given by the Single Judge and dismissed the Writ Petition.
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1995 (1) TMI 415
Issues Involved:
1. Interpretation of Section 154(7) of the Income Tax Act.
2. Calculation of the limitation period for rectification applications under Section 154.
3. Entitlement to depreciation allowance on factory building.
Issue 1: Interpretation of Section 154(7) of the Income Tax Act
The primary issue in this case is the interpretation of the expression "from the date of the order sought to be amended" in Sub-section (7) of Section 154 of the Income Tax Act. The court noted that the word 'order' is not qualified and can refer to any order, including an amended or rectified order. This interpretation aligns with previous judgments, such as in the case of Intimation Cotton Corporation v. C.T.O., where the court held that a rectified order is also "any order" which can be rectified under the relevant rules. The court reiterated that once an assessment is reopened, the initial order ceases to be operative, and a fresh order takes its place.
Issue 2: Calculation of the Limitation Period for Rectification Applications
The court examined whether the period of four years for filing a rectification application should be calculated from the original assessment order or from the rectified order. The Tribunal had allowed the application, holding that the four-year period should be calculated from the rectified order dated 12th July 1982. However, the High Court reversed this decision, stating that the period should be calculated from the original order dated 21st September 1979. The Supreme Court concluded that the period of limitation should indeed be calculated from the date of the rectified order, following precedents like Deputy Commissioner of Commercial Taxes v. H.R. Sri Ramulu and Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali, which established that a reassessment or rectified order replaces the original assessment order.
Issue 3: Entitlement to Depreciation Allowance on Factory Building
There was no dispute regarding the assessee's entitlement to a 10% depreciation allowance on the factory building. The court emphasized that this entitlement must be granted if the rectification application is within the permissible time frame. Given the court's interpretation that the limitation period should be calculated from the rectified order, the assessee's application was deemed timely.
Conclusion
The Supreme Court set aside the High Court's order and restored the Tribunal's decision, confirming that the rectification application filed on 4th July 1986 was within the four-year limitation period from the rectified order dated 12th July 1982. The appeals were allowed with no order as to costs.
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1995 (1) TMI 414
Issues Involved:
1. Legality of the detention order under COFEPOSA Act.
2. Computation of the five-day period for serving grounds of detention.
3. Non-transmission of representations to the Central Government.
4. Alleged discrepancy in the documents provided to the detenu.
5. Consideration of irrelevant and extraneous documents by the detaining authority.
6. Alleged delay in the disposal of the representation by the Central Government.
Issue-wise Detailed Analysis:
1. Legality of the Detention Order Under COFEPOSA Act:
The petitioner challenged the detention order under the COFEPOSA Act. The court noted that the petitioner, along with his brother, was intercepted at the airport with unauthorized foreign currency. The petitioner was detained, and the grounds of detention were served within the statutory period. The court found that the detention order was passed in accordance with the provisions of the COFEPOSA Act and upheld its legality.
2. Computation of the Five-Day Period for Serving Grounds of Detention:
The petitioner argued that the grounds of detention were served on the sixth day, thus violating Section 3(3) of the COFEPOSA Act. The court clarified that the computation of the five-day period should exclude the day of detention. Citing the Supreme Court's decision in Haru Das Gupta vs. The State of West Bengal, the court held that the grounds of detention were served within the prescribed period, as the day of detention (March 25, 1994) was excluded, making the service on March 30, 1994, timely.
3. Non-Transmission of Representations to the Central Government:
The petitioner contended that his representations to the Advisory Board were not forwarded to the Central Government, infringing Article 22(5) of the Constitution and Section 11 of the COFEPOSA Act. The court noted that the representations were addressed only to the Advisory Board and not to the Central Government. It held that there was no duty on the State Government to transmit these representations to the Central Government unless expressly requested by the detenu. The court cited Smt. Gracy vs. State of Kerala and other relevant cases to support its conclusion.
4. Alleged Discrepancy in the Documents Provided to the Detenu:
The petitioner claimed that the index of documents provided in Punjabi did not match the English version, making it impossible to verify the documents. The court found this submission unconvincing, noting that the petitioner failed to point out any specific discrepancies. The court held that the translation of the index was accurate and that the petitioner had not been prejudiced.
5. Consideration of Irrelevant and Extraneous Documents by the Detaining Authority:
The petitioner argued that the detaining authority considered irrelevant documents, specifically two applications filed before the ACMM, New Delhi. The court examined these documents and concluded that they contained relevant information about the petitioner's arrest and parole in connection with the customs case. Thus, the court rejected the contention that the detaining authority considered extraneous material.
6. Alleged Delay in the Disposal of the Representation by the Central Government:
The petitioner alleged that there was an inordinate delay in disposing of his representation by the Central Government. The court emphasized the importance of expeditious handling of representations under Article 22(5) of the Constitution. It examined the timeline provided in the counter-affidavit and found that the Central Government acted promptly. However, the court noted a delay by the sponsoring authority in sending comments and directed it to file an explanation within five days.
Conclusion:
The court upheld the legality of the detention order, found the computation of the five-day period for serving grounds of detention to be correct, and dismissed the petitioner's claims regarding non-transmission of representations, document discrepancies, and consideration of irrelevant material. The court directed the sponsoring authority to explain the delay in sending comments on the petitioner's representation. The matter was listed for further consideration on February 10, 1995.
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1995 (1) TMI 413
Issues Involved:
1. Entitlement to benefits under paragraph 10.4(i)(b) of the Industrial Incentive Policy, 1993.
2. Interpretation of the Industrial Incentive Policy, 1993.
3. Validity of Notification No. S.O. 95 dated 4.4.1994 issued by the Commercial Taxes Department.
4. Application of the principle of estoppel.
Issue-Wise Detailed Analysis:
1. Entitlement to Benefits under Paragraph 10.4(i)(b) of the Industrial Incentive Policy, 1993:
The core issue is whether the petitioners, who established their industrial units before 1st April 1993 with investments on plant and machinery not exceeding Rs. 15 crores and commenced production before that date, are entitled to the benefit of sales tax exemption on the purchase of raw materials for seven years from 1.4.1993. The petitioners argued that paragraph 10.4(i)(b) of the Industrial Incentive Policy, 1993, clearly grants this benefit without any condition related to prior benefits under earlier policies. The State contended that the policy did not intend to extend benefits to units that had already availed of incentives under previous policies.
2. Interpretation of the Industrial Incentive Policy, 1993:
The court examined the language of paragraph 10.4(i)(b) and the overall scheme of the Industrial Incentive Policy, 1993. It was noted that the policy aimed to accelerate industrial growth and provided various incentives to new units coming into production between 1.4.1993 and 31.3.1998. However, the policy also extended a limited benefit of sales tax exemption on the purchase of raw materials to older units with investments not exceeding Rs. 15 crores as of 1.4.1993. The court emphasized that the policy must be read as a whole, and the clear and unequivocal language of paragraph 10.4(i)(b) should be given effect.
3. Validity of Notification No. S.O. 95 dated 4.4.1994 issued by the Commercial Taxes Department:
The petitioners challenged the notification issued by the Commercial Taxes Department on 4.4.1994, which imposed a condition that the sales tax exemption on the purchase of raw materials would only be available to old units that had not availed of benefits under any previous industrial policy. The court found that this condition was inconsistent with the clear language of paragraph 10.4(i)(b) of the Industrial Incentive Policy, 1993. The court held that the Commercial Taxes Department could not modify the policy decision by imposing such a condition and that the notification was, therefore, unwarranted and illegal.
4. Application of the Principle of Estoppel:
The court considered the principle of estoppel, noting that the petitioners had altered their position based on the representation made in the Industrial Incentive Policy, 1993. The petitioners had purchased raw materials within the State of Bihar, relying on the promise of sales tax exemption. The court held that the petitioners could not be deprived of the promised benefit by a subsequent notification that was inconsistent with the policy decision.
Conclusion:
The court allowed the writ petitions, quashing the Notification No. S.O. 95 dated 4.4.1994 to the extent that it imposed a condition that the sales tax exemption on the purchase of raw materials would only be available to old industrial units that had not availed of benefits under any previous industrial policy. The court declared that the petitioners are entitled to the facility of sales tax exemption on the purchase of raw materials under paragraph 10.4(i)(b) of the Industrial Incentive Policy, 1993.
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1995 (1) TMI 412
Issues Involved:
1. Acquittal under Section 302 IPC and Section 27 of the Arms Act.
2. Right of private defense.
3. Delay in lodging the FIR.
4. Credibility of the prosecution's version.
5. Injuries on the respondent and their implications.
6. Procedural and administrative conduct of the Government.
Detailed Analysis:
1. Acquittal under Section 302 IPC and Section 27 of the Arms Act:
The primary issue was whether the High Court's acquittal of the respondent under Section 302 IPC and Section 27 of the Arms Act was "palpably erroneous or perverse." The respondent, a Sub-Inspector of Police, was initially convicted for the murder of an Assistant Sub-Inspector (ASI) and a constable, but the High Court later acquitted him, leading to the State's appeal.
2. Right of Private Defense:
The respondent claimed the shooting was in the exercise of the right of private defense. The trial judge and the High Court both examined whether the respondent's actions fell within the scope of Clauses I and II of Section 100 of the IPC. The High Court concluded that the respondent had a reasonable apprehension of death or grievous injury, justifying the use of his service revolver. The court noted, "The respondent had nine injuries. They have been found not to be self-inflicted."
3. Delay in Lodging the FIR:
The trial judge found the delay in lodging the FIR suspicious, as the two constables who accompanied the deceased allegedly hid in a field all night before reporting the incident the next morning. The High Court agreed, stating, "The delay in lodging the FIR was not satisfactorily explained by the prosecution."
4. Credibility of the Prosecution's Version:
The High Court disbelieved the prosecution's claim that the deceased and his companions were on a mission to apprehend robbers, as there was no entry in the daily diary (Rojnamacha) of the Police Station. The court found the prosecution's version less probable than the defense's, noting, "The deceased and his companions were checking the trucks on the G.T. Road and extracting money from the truck drivers."
5. Injuries on the Respondent and Their Implications:
The trial judge initially found the respondent's injuries to be self-inflicted, but the High Court disagreed, citing medical evidence. The High Court observed, "The injuries on the person of the respondent were not self-inflicted as per the statement of Dr. Ashwani Kumar, P.W. 3." This supported the respondent's claim of being attacked, justifying his use of the firearm in self-defense.
6. Procedural and Administrative Conduct of the Government:
The Supreme Court expressed disapproval of the Government's decision to reinstate and promote the respondent while the appeal against his acquittal was pending. The court stated, "The Government would have been well advised to adopt the sealed cover procedure, a firmly established and well-known practice in service law."
Conclusion:
The Supreme Court upheld the High Court's acquittal, finding no "palpably erroneous" or "perverse" errors in its judgment. The court emphasized the importance of timely trials and criticized the Government's procedural conduct. The respondent was ordered to deposit Rs. 5 lakhs with the High Court Registrar, to be distributed among the dependents of the deceased officers. The appeal was dismissed.
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1995 (1) TMI 411
The High Court upheld the trial court's decision allowing the plaintiff to lead evidence in rebuttal by examining a Handwriting Expert. However, the original agreement must be produced for signature comparison. The revision petition was disposed of with no costs.
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1995 (1) TMI 410
Issues Involved:
1. Whether the payee or holder in due course of a dishonoured cheque can validly initiate prosecution under Section 138 of the Negotiable Instruments Act, 1881, with reference to a second cause of action if he had not taken advantage of the first cause of action.
2. Whether successive causes of action for prosecution can arise on the basis of one and the same cheque.
3. Whether the decision in Kumaresan's case (1991 (1) Ker LT 893) was correctly decided.
Detailed Analysis:
Issue 1: Validity of Initiating Prosecution Based on Second Cause of Action
The court examined whether the payee or holder in due course of a dishonoured cheque can initiate prosecution under Section 138 of the Negotiable Instruments Act, 1881, with reference to a second cause of action if the first cause of action was not utilized. The court held that there is no express provision in Chapter XVII of the Act that precludes the payee or holder in due course from presenting the cheque again and issuing a notice of demand under clause (b) of the proviso to Section 138, thus creating a fresh cause of action. The court noted that the right to prosecute is an optional remedy and can be waived or renounced by the payee or holder in due course. The court emphasized that the payee or holder in due course does not forfeit the right to prosecute the offender based on a subsequent cause of action even if the first cause of action was not utilized.
Issue 2: Successive Causes of Action for Prosecution
The court addressed whether successive causes of action for prosecution can arise on the basis of one and the same cheque. The court found that the provisions of Chapter XVII of the Act do permit the creation of successive causes of action during the period of the validity of the cheque. The court reasoned that so long as the cheque remains unpaid, the payee or holder in due course can present the cheque again, and if it is dishonoured, issue a fresh notice of demand. If the drawer fails to satisfy the demand, a fresh cause of action arises, and the payee or holder in due course can file a complaint based on this new cause of action. The court concluded that the wording of Section 138 is wide enough to permit the creation of successive causes of action.
Issue 3: Reconsideration of Kumaresan's Case
The court reconsidered the decision in Kumaresan's case, which held that more than one cause of action on the same cheque is not contemplated or envisaged by the provisions of the Act. The court disagreed with this conclusion, stating that there is nothing in the provisions of Chapter XVII of the Act or its object and scheme that supports such a conclusion. The court found that the provisions do not justify the conclusion that more than one cause of action on the same cheque is not contemplated. The court emphasized that the view taken in Kumaresan's case is not correct and that the provisions of Section 138 and 142 of the Act permit the creation of successive causes of action. The court approved the view taken in Mahadevan Sunilkumar v. Bhadran (1991 (1) Ker LT 651) as correct.
Conclusion:
The court concluded that Kumaresan's case was not correctly decided and that there is nothing in Chapter XVII of the Act that precludes the creation of successive causes of action on the basis of one and the same cheque. The court held that Section 142(b) only prescribes a period of limitation for filing a complaint with reference to a cause of action already accrued and does not bar the payee or holder in due course from taking necessary actions to complete a fresh cause of action. The court dismissed the Criminal Miscellaneous Case, stating that successive causes of action may arise on the basis of one and the same cheque for filing a complaint under Section 142, subject to the restrictions contained in Sections 138 and 142 of the Act.
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1995 (1) TMI 409
Issues Involved:
1. Legislative competence of the Union Parliament to enact Section 138 of the Negotiable Instruments Act.
2. Constitutionality of excluding mens rea in Section 138.
3. Differential treatment of companies and individuals under Section 138.
4. Interpretation of the phrase "fails to make payment" in proviso (c) to Section 138.
5. Constitutionality of the presumption in Section 139.
6. Applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, to prosecutions under Section 138.
Issue-wise Detailed Analysis:
1. Legislative Competence of the Union Parliament:
The petitioners argued that the Union Parliament lacks the legislative competence to enact Section 138, as it concerns the relationship of debtor and creditor, falling under the State List (Entry 30). The court held that Section 138, in its pith and substance, concerns banking and negotiable instruments (Entries 45 and 46 of List I), and does not primarily deal with money-lending or money-lenders. Thus, the legislation is within the competence of the Union Parliament.
2. Constitutionality of Excluding Mens Rea:
The petitioners contended that excluding mens rea from Section 138 violates Article 14 of the Constitution. The court noted that while mens rea is generally an essential ingredient of a criminal offence, it can be excluded by statute either explicitly or by necessary implication. Section 138 creates strict liability, and its objective is to enhance the acceptability of cheques in settlements of liabilities. The court held that the exclusion of mens rea in Section 138 is not arbitrary and does not violate Article 14, as it serves a larger public interest.
3. Differential Treatment of Companies and Individuals:
The petitioners argued that Section 141, which provides a safeguard for individuals in charge of companies, creates an unreasonable classification violating Article 14. The court held that treating companies and individuals differently is reasonable, as a company is a legal person distinct from its shareholders or members. The classification is based on the reality that wrongful acts of a company are acts of its agents. Therefore, the classification is neither irrational nor unreasonable.
4. Interpretation of "Fails to Make Payment":
The petitioners suggested that the words "fails to make payment" in proviso (c) to Section 138 should imply "failure without reasonable cause." The court rejected this, stating that the explicit language of the statute and the principle of strict liability incorporated in Section 138 do not support such an interpretation. The court emphasized that the failure to make payment within the stipulated period triggers the offence under Section 138, regardless of the reason.
5. Constitutionality of the Presumption in Section 139:
The petitioners argued that the presumption in Section 139 violates Article 20(3) of the Constitution, which protects against self-incrimination. The court held that the presumption in Section 139 is a rebuttable presumption and does not compel the accused to be a witness against himself. The court explained that such presumptions are common in criminal statutes and do not violate constitutional protections.
6. Applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act:
The petitioners contended that prosecution under Section 138 is barred by Section 22 of the Sick Industrial Companies (Special Provisions) Act, which suspends legal proceedings against a sick industrial company. The court held that Section 22 applies to proceedings for winding up, execution, distress, or recovery of money but does not bar prosecution under penal laws like the Negotiable Instruments Act.
Guidelines for Interpretation:
The court provided guidelines for interpreting Sections 138, 139, and 142:
- Section 138 should be construed strictly as it incorporates strict liability.
- The drawer of a cheque is liable for prosecution if the cheque is issued for the discharge of any debt or liability and is dishonoured due to insufficiency of funds or exceeding arrangements with the bank.
- The presumption under Section 139 operates in favor of the payee or holder in due course but not for a holder without consideration.
- The burden initially lies on the complainant to show the cheque was issued for a legally enforceable debt, after which the burden shifts to the accused to disprove it.
- A Judicial First Class Magistrate or Metropolitan Magistrate trying an offence under Section 138 can impose a fine exceeding Rs. 5,000 if warranted.
Conclusion:
The writ petitions were dismissed, and the court upheld the constitutionality and legislative competence of Section 138 of the Negotiable Instruments Act, providing detailed guidelines for its interpretation. The stay orders were vacated, and the concerned Magistrates were directed to dispose of the cases expeditiously.
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1995 (1) TMI 408
Issues Involved:
1. Jurisdiction of the Company Law Board under Sections 397 and 398 of the Companies Act.
2. Validity and enforceability of the compromise scheme.
3. Requirement of a deed of conveyance for property transfer under the compromise scheme.
4. Registration of the Company Law Board's order.
Detailed Analysis:
1. Jurisdiction of the Company Law Board under Sections 397 and 398 of the Companies Act:
The appellants challenged the jurisdiction of the Company Law Board (CLB) to order the transfer of property under Sections 397 and 398 of the Companies Act. They contended that the CLB lacked the authority to effectuate property transfers without a proper deed of conveyance and registration. The court, however, held that Sections 397, 398, and 402 of the Companies Act grant the CLB wide powers to make orders to end matters of oppression and mismanagement, including the transfer of property. The court emphasized that the CLB's orders are meant to be effective immediately and do not require compliance by the parties accused of oppression and mismanagement.
2. Validity and enforceability of the compromise scheme:
The respondents raised a preliminary objection, asserting that no appeal lies against a consent order. The court referred to the case of Bryam Pestonji Gariwala v. Union Bank of India, which dealt with the authority of counsel to compromise on behalf of a client, and clarified that an appeal can lie if the jurisdiction of the authority is challenged. The court found that the CLB's order was in terms of the compromise scheme agreed upon by the parties, and thus, the appeal was maintainable.
3. Requirement of a deed of conveyance for property transfer under the compromise scheme:
The appellants argued that a proper deed of conveyance was necessary to effectuate the property transfer. They referred to clause 3.2 of the compromise scheme, which mentioned the liberty to register the CLB's order with the Sub-Registrar. The court clarified that this clause did not imply that a deed of conveyance was required. The court held that the compromise scheme and the CLB's order were sufficient to transfer the property without the need for additional documentation.
4. Registration of the Company Law Board's order:
The court addressed the appellants' contention that the absence of a provision similar to Section 394(2) in Sections 397, 398, or 402 of the Companies Act implied that the CLB's order could not effectuate property transfer. The court noted that Section 394 deals with the reconstruction and amalgamation of companies and includes a specific provision for property transfer by virtue of the court's order. However, the court held that the broad and absolute powers granted to the CLB under Sections 397 and 398 include the implicit authority to transfer property without requiring registration or execution of a deed of conveyance.
Conclusion:
The court concluded that the CLB had the jurisdiction to pass the order transferring property as part of the compromise scheme. The order did not require the execution of a deed of conveyance or registration to be effective. Consequently, the appeal was dismissed with costs, affirming the CLB's order dated 15th September 1994. The court emphasized that the powers of the CLB are intended to provide immediate and effective remedies for oppression and mismanagement within companies.
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1995 (1) TMI 407
Issues Involved:
1. Whether the appellant committed contempt of court by violating the High Court's order dated 9th Dec. 1988.
2. Whether the apology tendered by the appellant was bona fide.
3. Whether the punishment awarded to the appellant was excessive.
Detailed Analysis:
1. Contempt of Court:
The appellant was found guilty of contempt by a learned single Judge for repeatedly violating the High Court's order dated 9th Dec. 1988 in Civil Misc. Writ Petition No. 16115 of 1988. The order directed that the petitioner, a lecturer, should continue to work and be paid his salary until a regularly selected candidate became available or his services were terminated in accordance with the law. The appellant, as the Honorary Secretary of S.M. College, Chandausi, failed to comply with this order, leading to the filing of a contempt application by the respondent.
2. Bona Fide Apology:
The learned single Judge found that the apology tendered by the appellant was not bona fide but a ruse to escape punishment. The appellant had initially offered an unconditional apology in August 1989 but continued to violate the court's order. The court noted that the appellant's actions demonstrated a lack of genuine contrition and an attempt to evade responsibility.
3. Excessiveness of Punishment:
The appellant argued that the punishment of one month in civil prison and a fine of Rs. 2,000 was excessive. The High Court examined whether the sentence was appropriate given the circumstances. The court noted that the appellant had admitted his guilt before the learned single Judge and had not taken steps to correct any alleged errors in the judgment. The court also considered the appellant's argument that the responsibility for paying the salary lay with the State Government, not the college management.
The High Court found that the appellant had indeed violated the undertaking given to the court. However, it also recognized that the appellant was an Honorary Secretary and that the college was under the grant-in-aid of the Government, which was responsible for salary payments. Ultimately, the court noted that the order had been substantially complied with, as the respondent received his salary on 11th June 1990, albeit after a delay.
Conclusion:
The High Court modified the judgment of the learned single Judge, concluding that while the appellant was guilty of contempt, the ends of justice would be met by imposing only a fine of Rs. 2,000. The appellant was not required to undergo civil prison. The appeal was partly allowed, and the sentence was modified accordingly.
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1995 (1) TMI 406
Issues:
1. Interpretation of Section 69 of the Indian Partnership Act regarding the maintainability of a suit under Section 20 of the Arbitration Act for dissolution of a partnership firm and rendition of accounts.
2. Whether the arbitration clause in the partnership deed can be invoked despite the partnership firm being unregistered.
3. Determination of the rights of legal representatives of a deceased partner in a dissolved partnership firm.
Analysis:
1. The case involved a partnership firm consisting of a father and his sons, which was dissolved upon the death of one of the sons. The dispute arose regarding the enforcement of rights under the partnership deed, specifically for rendition of accounts. The High Court held that Section 69 of the Partnership Act excluded the application of Section 20 of the Arbitration Act, making the suit not maintainable. The Supreme Court analyzed the provisions of Section 69 and previous judgments to determine the scope of the prohibition imposed by the Act.
2. The appellants argued that the arbitration clause in the partnership deed allowed them to seek resolution through an alternative forum as per clause 16. They contended that the exception carved out in Section 69(3)(a) permitted them to enforce the arbitration agreement despite the firm being unregistered. The respondents, however, argued that the right to sue under the contract included the entitlement to enforce the arbitration clause, making the suit under Section 20 of the Act not maintainable.
3. The Supreme Court delved into the interpretation of Section 69(3)(a) and emphasized that the exceptions provided in the Act were crucial to ensure the enforcement of rights even in the case of an unregistered firm. The Court held that the legal representatives of the deceased partner had the right to enforce the arbitration clause for dissolution of the firm and rendition of accounts, as it fell within the exceptions carved out in Section 69(3)(a). Therefore, the Court allowed the appeal, directing the trial court to refer the dispute to the named arbitrators for resolution within a specified timeframe.
In conclusion, the Supreme Court clarified the interplay between the provisions of the Partnership Act and the Arbitration Act, affirming the maintainability of the suit under Section 20 for enforcing the rights arising from the dissolution of the partnership firm.
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1995 (1) TMI 405
Issues:
Interpretation of agricultural income for deduction under section 32AB of the Income-tax Act, 1961.
Analysis:
The case involved a public limited company that claimed a deduction for investment under section 32AB of the Income-tax Act, including income from agricultural produce. The Assessing Officer disallowed the claim based on the exclusion of income earned from agricultural produce. The Commissioner (Appeals) allowed the appeal, stating that agricultural income should be included for the deduction. The Tribunal upheld this decision, considering income from the sale of Eucalyptus wood as agricultural income exempt from tax but part of the business profit. The Tribunal's decision was based on the interpretation that the income earned from agricultural operations on leased land constituted agricultural income and was eligible for deduction under section 32AB. The Tribunal emphasized that the definition of 'eligible business' was broad and allowed for inter-head and intra-head adjustments in income computation.
The petitioner sought a reference to the High Court on the question of whether the Tribunal erred in allowing the benefit of section 32AB to the assessee for income classified as agricultural income. The Tribunal's decision was based on the understanding that the assessee's operations constituted a single business activity, with income from agricultural operations forming part of the same business. The Tribunal concluded that the assessee was entitled to the benefit of section 32AB, as the income was earned from eligible business activities and the accounts were prepared in compliance with the relevant provisions. The Tribunal affirmed the Commissioner (Appeals)'s decision, emphasizing the interconnected nature of the business activities conducted by the assessee.
In the legal analysis, reference was made to the Supreme Court's interpretation of 'agricultural income' under the Income-tax Act, highlighting the essential operations and activities that constitute agricultural income. Additionally, a Kerala High Court case was cited to support the broader interpretation of agricultural income, even when basic agricultural operations were not directly undertaken by the assessee. The Court concluded that the law on the treatment of income derived from agricultural operations was well-settled, leading to the dismissal of the petition for reference to the High Court. The Court declined to award costs based on the circumstances of the case.
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1995 (1) TMI 404
Issues:
1. Applicability of provisions of Order XLVII, C.P.C. to review petitions filed before Forest Tribunal under Section 8B of the Private Forests Act and before the High Court under Section 8C.
2. Interpretation of grounds for review under Section 8B of the Act.
3. Scope of review powers under Section 8B and 8C of the Act.
4. Consideration of additional grounds for review beyond those specified in Section 8B.
5. Examination of factual findings and conclusions of the Tribunal in a review petition.
Analysis:
1. The case involved a dispute regarding the applicability of Order XLVII, C.P.C. to review petitions filed before the Forest Tribunal under Section 8B of the Private Forests Act and before the High Court under Section 8C. The Tribunal allowed a review petition filed by the respondents, leading to an appeal by the appellants contending that the review order was contrary to law and evidence. The Division Bench considered the applicability of Order XLVII, Rule 1, C.P.C. based on a previous decision and the need for reconsideration.
2. The Senior Counsel for the appellants argued that Section 8B of the Act specifies grounds for review, and the Tribunal can review a judgment only if these conditions are satisfied. The Counsel contended that the Tribunal erred in considering data collected after the disposal of the original application and that the findings regarding the land being part of a private forest lacked evidence. It was also argued that the appellants were not given sufficient opportunity to establish their case.
3. The Government Pleader for the respondents submitted legal points and grounds for review in the memorandum, emphasizing that the original order lacked vital data and errors apparent on the face of the record. The Government sought review based on the need for further evidence and documentary support. The Tribunal allowed the review petition, leading to the appeal.
4. The High Court analyzed the provisions of Section 8B of the Act, emphasizing that the power of review is not restricted by the specific grounds mentioned in Section 8B(1). The Court held that the Tribunal is not limited to those grounds and may consider additional reasons for review, such as discovery of vital evidence or errors in the record. The Court clarified that Order XLVII, Rule 1, C.P.C. does not apply to reviews under the Act.
5. Upon reviewing the facts of the case, the Court found that the Tribunal's factual findings were sound, including the property being part of a private forest and the appellant not meeting the criteria for exemption under the Act. The Court upheld the Tribunal's decision in the review petition, dismissing the appeal. The Court concluded that the Tribunal had considered the matter thoroughly and there was no error in the review process.
In conclusion, the High Court dismissed the appeal, affirming the Tribunal's decision in the review petition and clarifying the scope of review powers under the Private Forests Act.
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