|
Advanced Search Options
Case Laws
Showing 1 to 20 of 435 Records
-
1997 (11) TMI 556
The Supreme Court set aside the order of detention challenged in the appeal, citing a previous judgment that upheld the validity of the order of forfeiture under SAFEMA. The High Court's decision to entertain the writ petition challenging the detention was deemed not maintainable. The appeal was allowed.
-
1997 (11) TMI 555
Issues:
1. Imposition of penalty for contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973.
2. Failure of the appellant to realize proceeds of exports.
3. Non-appearance of the appellant during the proceedings.
4. Allegations of procedural irregularities in the adjudication proceedings.
5. Remand of the case for fresh adjudication.
Detailed Analysis:
1. The judgment pertains to an appeal against the imposition of a penalty of Rupees ten lakhs on the appellant for contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973. The penalty was imposed based on the appellant's alleged failure to realize the proceeds of exports made under specific GRIs listed in the show-cause notice.
2. The appellant failed to appear during the proceedings despite repeated notices. The address provided by the appellant for communication was found to be valid, and the appellant was expected to ensure receipt of communications in their absence. Consequently, the tribunal proceeded ex parte against the appellant.
3. The tribunal, after reviewing the dispensation application and the appeal memorandum, decided to remand the case for fresh adjudication due to procedural reasons. The requirement of pre-deposit was waived, and the appeal was disposed of with a final order.
4. The appellant raised several grounds of appeal, including procedural irregularities in the adjudication proceedings. It was contended that the appellant was not given a proper opportunity to present their case as per the Adjudication Proceedings and Appeal Rules, 1974. There were discrepancies regarding the notice of personal hearing and the timing of the adjudication process.
5. The tribunal found that the procedure adopted by the adjudicating officer did not comply with the Adjudication Proceedings & Appeal Rules, 1974. The appellant should have been given an opportunity to respond to the show-cause notice before the adjudication proceedings were initiated. The tribunal emphasized the importance of following due process and considering the appellant's submissions before proceeding with adjudication.
6. The tribunal observed that the appellant could not be held guilty of contravention for exports where the goods were not received by the foreign buyer. The burden of proof regarding the receipt of goods and efforts to realize proceeds lies with the exporter. Additionally, the tribunal highlighted the necessity of establishing contravention before imposing penalties on directors under section 68(1) of the Act.
7. Consequently, the impugned order was set aside, and the case was remanded for fresh adjudication in line with the observations made by the tribunal and in accordance with the law. The adjudication file was directed to be returned to the Enforcement Directorate for further proceedings.
-
1997 (11) TMI 554
Issues:
1. Violation of sections 8(1) and (2), read with section 64(2) of the Foreign Exchange Regulation Act, 1973.
2. Alleged contravention of the Act due to possession of foreign exchange during a search.
3. Failure to attend adjudication proceedings due to financial constraints.
4. Allegation of decision made without considering appellant's reply.
5. Grounds of appeal based on natural justice, financial condition, and violation of law.
6. Inability to personally attend proceedings and reliance on written submissions.
7. Burden of proof on appellant to show legal possession of foreign currency.
8. Lack of documentary proof regarding the source of foreign currency.
9. Adjudication Officer's rejection of appellant's claim regarding the currency.
10. Consideration of appellant's financial condition in determining penalty.
11. Reduction of penalty from Rs. 5,000 to Rs. 2,000 for the appellant.
Analysis:
The judgment pertains to an appeal against an order alleging contravention of sections 8(1) and (2), along with section 64(2) of the Foreign Exchange Regulation Act, 1973. The Enforcement Directorate conducted a search where foreign exchange was seized from the appellant's possession. The appellant did not attend adjudication proceedings personally or through legal representation due to financial constraints. The appellant claimed that the Assistant Director made a decision without proper consideration, leading to prejudice. The grounds of appeal included violations of natural justice, failure to consider financial condition, and alleged errors in the decision-making process.
The appellant argued that the order was against natural justice and failed to consider all aspects, including financial constraints and reasons provided in the reply. The appellant contended that the Assistant Director did not properly investigate the source of the foreign currency found in the appellant's possession. Despite the appellant's claim that the currency belonged to his deceased father, no documentary evidence was presented to support this assertion. The Adjudicating Officer rejected the appellant's plea, leading to the upholding of the confiscation order and penalty imposed.
The appellant's financial condition was taken into account, leading to a reduction in the penalty from Rs. 5,000 to Rs. 2,000. The appellant was directed to deposit the reduced penalty within 45 days. Failure to comply would result in the Enforcement Directorate recovering the amount in accordance with the law. The judgment emphasized the importance of proving legal possession of foreign currency and the adherence to principles of natural justice in such cases.
-
1997 (11) TMI 553
Issues:
1. Imposition of penalty under the Foreign Exchange Regulation Act, 1973.
2. Waiver of pre-deposit application.
3. Error in imposing penalty on the firm after dissolution.
4. Finding of contravention under section 18(2) and 18(3) of the Act.
Analysis:
The judgment by the Appellate Tribunal of the Foreign Exchange Regulation Appellate Board pertains to an appeal against an Adjudication Order imposing a penalty under the Foreign Exchange Regulation Act, 1973. The appellant, a partner of a firm, was penalized for contravention of sections 18(2) and 18(3) of the Act for failing to receive the full value of exports made under specific GRI forms. The penalty was challenged, and a waiver of pre-deposit was requested, citing that the Reserve Bank of India (RBI) had granted a write-off for the outstanding export amount. The Tribunal decided to waive the pre-deposit requirement and proceed to hear the case on its merits, ultimately disposing of the appeal.
The Tribunal noted an error in the imposition of the penalty on the firm, which had dissolved following the death of a partner. The penalty should have been imposed solely on the appellant, who had become the sole proprietor of the business. The penalty on the appellant was also questioned as he was penalized as a partner of the firm, although he had become the sole proprietor. These legal infirmities were highlighted, leading to the conclusion that the penalty imposition was flawed.
Regarding the finding of contravention under section 18(2) of the Act, the Tribunal analyzed the essential elements required to prove such contravention. It was established that the RBI's permission was necessary for non-receipt of export proceeds and that proceedings under the Act were premature if an application for waiver was pending RBI's consideration. The Tribunal criticized the Adjudicating Officer's conclusion that RBI had not granted write-off permission, citing correspondence between the appellant's bank and RBI as evidence of the ongoing consideration. Ultimately, since RBI had granted the write-off, the finding of contravention under section 18(2) was deemed invalid, leading to the setting aside of the penalties imposed.
In conclusion, the appeal was allowed, and the impugned order imposing penalties was set aside based on the errors in penalty imposition and the flawed finding of contravention under the Act.
-
1997 (11) TMI 552
The High Court ruled in favor of the assessee, allowing exemption for their shares in the partnership firm's property under section 5(1)(iv) of the Wealth Tax Act, 1957. The court held that partners have a specific interest in the firm's assets and are entitled to the exemption. The decision was supported by previous case law.
-
1997 (11) TMI 551
The High Court ruled in favor of the assessee, allowing exemption for his share in the property of the partnership firm under section 5(1)(iv) of the Wealth Tax Act. The Court held that since a firm has no legal existence, the property of the firm belongs to its partners, entitling the assessee to claim the exemption. The decision was based on previous rulings and principles of English jurisprudence.
-
1997 (11) TMI 550
The High Court ruled in favor of the assessee, allowing exemption for his share in the property of the partnership firm under section 5(1)(iv) of the Wealth Tax Act. The court held that partners have a specific interest in the firm's assets and are entitled to the exemption. The decision was supported by previous case law.
-
1997 (11) TMI 549
The High Court ruled in favor of the assessee, holding that he was entitled to exemption under section 5(1)(iv) for his share in the property of the partnership firm. The court emphasized that a partner has a specific interest in the assets of the firm and that the property of the firm is essentially the property of its partners. The decision was supported by precedents and the Wealth Tax Rules.
-
1997 (11) TMI 548
Issues: Delay in filing appeal, condonation of delay, jurisdictional error
Delay in filing appeal:
The lower Appellate Court condoned the delay in filing the appeal due to a bona fide mistake by the non-applicant's advocate in advising to file the appeal before the High Court instead of the District Court. The lower Court relied on precedents like Mata Din v. A. Narayanan and State v. Man Mohanlal to support the condonation of delay based on the non-applicant's good faith belief in pursuing the matter before the wrong forum.
Condonation of delay:
The applicant challenged the impugned order, arguing that there was no evidence to prove the bona fide mistake by the non-applicant's advocate and that diligence was lacking in obtaining the certified copy before filing the appeal. However, the Court found a clear factual finding that there was a bona fide mistake, supported by the materials on record. The Court emphasized that unless such findings are shown to be arbitrary or perverse, they cannot be disregarded.
Jurisdictional error:
The applicant contended that the lower Court erred in exercising its jurisdiction by condoning the delay without proper basis. However, the Court held that the lower Appellate Court, after analyzing the evidence, judiciously exercised its discretion in condoning the delay. Since no jurisdictional error was demonstrated, the Court found no grounds to interfere with the lower Court's decision.
In conclusion, the Court dismissed the Revision Application, stating that the discretion to condone the delay was appropriately exercised by the lower Appellate Court, and there was no justification for interference. The judgments cited by the applicant were deemed inapplicable to the present case, as the circumstances differed. The Court upheld the lower Court's decision to condone the delay and dismissed the Revision Application without costs.
-
1997 (11) TMI 547
Issues Involved:
1. Motive of A-1 to exterminate Tomy and his family.
2. Illicit intimacy between A-1 and A-2.
3. Attempts to administer insecticide to Merli and her children.
4. Procurement and testing of cyanide by A-4.
5. Movements and presence of the accused near the crime scene.
6. Medical evidence and injuries on A-3 and A-4.
7. Recovery of incriminating items.
8. Confession of A-4.
9. Admissibility of evidence and its evaluation by the trial court and High Court.
Detailed Analysis:
1. Motive of A-1 to Exterminate Tomy and His Family:
The High Court accepted the evidence of Tomy (PW-2) and his elder brother Paul (PW-15) and held that A-1 was on inimical terms with Tomy and his wife and had sufficient motive to finish Tomy and his family members. The trial court had also accepted that A-1 had strong ill-feeling against PW-2 and his wife, Merli.
2. Illicit Intimacy Between A-1 and A-2:
The High Court confirmed the finding recorded by the trial court relying upon the evidence of PWs 41, 43, 44, and M.Os. 27, 28, 29, 40, and 41, that A-1 and A-2 had resorted to black magic and witchcraft for ruining Tomy and his family.
3. Attempts to Administer Insecticide to Merli and Her Children:
The High Court believed the evidence of PWs 15 and 16, from whose shops A-3 had purchased insecticide 'Dalf' on 16.5.1980. The trial court had rejected their evidence on grounds that were not considered proper by the High Court. The High Court also accepted the evidence of PW-38, who saw A-1 and A-3 at Tomy's house on 29.5.1980, rejecting the trial court's reasons for disbelief.
4. Procurement and Testing of Cyanide by A-4:
The High Court found that A-4 had procured cyanide from Chinnappan (PW-27) and tested its effectiveness on a cat. The trial court had disbelieved PW-27's evidence on insufficient grounds, which the High Court found improper.
5. Movements and Presence of the Accused Near the Crime Scene:
The High Court accepted the evidence of various witnesses (PWs 3, 4, 11, 47, 8, 13) who testified about the movements of A-1, A-3, and A-4 near Tomy's house on the evening of the incident. The High Court criticized the trial court for rejecting this evidence on flimsy grounds.
6. Medical Evidence and Injuries on A-3 and A-4:
The High Court accepted the medical evidence provided by Dr. Abraham (PW-60) and Dr. Vasant Kumari (PW-64) regarding injuries on A-3 and A-4, which corroborated their involvement in the crime. The trial court's reasons for rejecting this evidence were found improper by the High Court.
7. Recovery of Incriminating Items:
The High Court found the recovery of the gold chain (MO-8) and the bottle containing a mixture of parataph and eccalex (MO-44) at the instance of A-2 to be credible. The trial court's reasons for rejecting this evidence were deemed improper by the High Court.
8. Confession of A-4:
The High Court held that the trial court had looked at the confession with suspicion and committed an illegality by comparing it with the case diary. The High Court found the confession to be voluntary and true and held that it could be used against other accused under Section 10 of the Evidence Act.
9. Admissibility of Evidence and Its Evaluation by the Trial Court and High Court:
The High Court found that most of the reasons given by the trial court for rejecting the prosecution evidence were grossly unreasonable and some were almost perverse. The High Court re-appreciated the evidence and came to a different conclusion regarding the guilt of the accused.
Conclusion:
The High Court held that the prosecution had proved beyond reasonable doubt that the accused had conspired to murder Merli and her children and did murder them between 7.00 p.m. and 7.45 p.m. on 23.6.1980. It set aside the acquittal of the accused and sentenced them to life imprisonment. The Supreme Court, finding no good reason to differ from the High Court's view, dismissed the appeal.
-
1997 (11) TMI 546
Issues Involved:
1. Legality of the High Court's order dated September 10, 1996.
2. Scope of supervisory jurisdiction under Article 227 of the Constitution of India and inherent jurisdiction under Section 482 of the Criminal Procedure Code (Cr.P.C.).
3. Requirement of sanction under Section 197 Cr.P.C. for initiating criminal proceedings against government officials.
4. Whether the acts committed by the respondents were in the discharge of official duties.
5. Admissibility of evidence and documents at the stage of considering the requirement of sanction.
Detailed Analysis:
1. Legality of the High Court's Order:
The appellant contended that the High Court's order dated September 10, 1996, resulted in manifest injustice and was patently illegal, improper, and unjustified. The High Court had allowed the writ petitions filed by respondents Nos. 1 to 3 and dismissed the Criminal Revision Application filed by the appellant. The appellant argued that the High Court improperly exercised its revisional jurisdiction under Article 226 and 227 of the Constitution and Section 482 Cr.P.C.
2. Scope of Supervisory Jurisdiction:
The appellant argued that the High Court, in exercising its supervisory jurisdiction under Article 227 and inherent jurisdiction under Section 482 Cr.P.C., should not have engaged in a full-fledged appreciation of evidence like a regular appellate court. The trial court had issued processes against respondents Nos. 1 to 3 based on prima facie evidence of cognizable offenses. The High Court's interference was deemed improper as the trial court had exercised its discretion judicially.
3. Requirement of Sanction under Section 197 Cr.P.C.:
The appellant contended that sanction under Section 197 Cr.P.C. is not required unless the complaint on its face discloses official action. The acts alleged against the respondents did not prima facie appear to be in the purported exercise of official duties, and thus, no sanction was warranted at the initial stage. The appellant cited several Supreme Court decisions to support this contention, including Nagaraj Vs. State of Mysore and Chandra Deo Singh Vs. Prakash Chandra Bose.
4. Acts Committed in Discharge of Official Duties:
The respondents argued that their actions were in the discharge of official duties and thus required sanction under Section 197 Cr.P.C. The learned Attorney General submitted that the respondents acted to prevent a law and order situation, which justified their actions. The statements of witnesses indicated that the respondents had taken charge of the situation to prevent further trouble. The Supreme Court agreed that the alleged acts were purported to be in the exercise of official duties, making a case for sanction under Section 197 Cr.P.C.
5. Admissibility of Evidence and Documents:
The Supreme Court held that the question of sanction under Section 197 Cr.P.C. should not be confused with the scheme of trial under the Code of Criminal Procedure. The accused should be allowed to produce relevant documents and materials to establish the necessity for sanction. The Court referred to several decisions, including Matajog Dubey Vs. H.C. Bhari and S.B. Saha's case, to support this view. The Court concluded that the accused could produce documentary materials admissible without formal proof to support the plea of sanction.
Conclusion:
The Supreme Court dismissed the appeals, holding that the High Court's order was legal and justified. The Court emphasized that the acts committed by the respondents were purported to be in the exercise of official duties, thus requiring sanction under Section 197 Cr.P.C. The Court clarified that it had not expressed any opinion on the merits of the case.
-
1997 (11) TMI 545
Issues:
1. Whether the debenture redemption reserve should be included in the capital computation for surtax purposes.
Analysis:
The case involved a dispute regarding the inclusion of a debenture redemption reserve in the capital computation for surtax purposes. The assessee, M/s Tube Investments of India Ltd., claimed that the debenture redemption reserve should be considered as part of the capital, while the Revenue contended that it should be treated as a provision and not included in the computation. The CIT(A) and the Tribunal sided with the assessee, leading to the Revenue challenging the decision.
The Revenue argued that the debenture redemption reserve should not be considered a reserve as it is meant to meet a known liability, citing a recent Supreme Court decision in the case of National Rayon Corporation Ltd. The assessee's counsel, on the other hand, acknowledged the position but raised the point that if there was any excess provision beyond the known liability, that amount could be treated as a reserve and included in the capital computation.
The High Court, after considering the arguments from both sides, referred to the Supreme Court decision in National Rayon Corporation Ltd. The Court emphasized that if the debenture redemption reserve was solely for a known liability, it should be treated as a provision and not included in the capital. However, the Court noted that there was a lack of clarity on whether there was any excess amount beyond the known liability, which could potentially be considered as a reserve. As the Tribunal had not addressed this aspect, the High Court directed the Tribunal to reevaluate the matter in light of the Supreme Court's principles and determine if any portion of the debenture redemption reserve could be included in the capital computation for surtax purposes.
In conclusion, while the High Court answered the question of law in favor of the Revenue, it directed the Tribunal to reconsider the issue to determine if any part of the debenture redemption reserve could be treated as a reserve based on the existence of any excess amount beyond the known liability.
-
1997 (11) TMI 544
Issues: Pending matter regarding mismanagement in a company's affairs, inaction by government agencies, appointment of a Chartered Accountant to examine company's accounts, direction for Central Government to provide details of action taken.
In this judgment, the Supreme Court expressed concern over the inaction of government agencies in addressing a matter of alleged mismanagement in a company's affairs. The Court highlighted that it is primarily the responsibility of the Executive to correct such aberrations and ensure wrongdoers are identified and dealt with in accordance with the law. Despite issuing notice to the Central Government, no significant steps had been taken by the agencies, prompting the Court to appoint a Chartered Accountant to examine the company's accounts. The Court emphasized the need for independent examination by the authorities concerned to address the allegations made in the writ petition regarding mismanagement in the company. The Court also directed the Central Government to provide details of any action taken in the matter.
The learned Additional Solicitor General informed the Court that government agencies had deferred taking any steps due to the pendency of the writ petition. The Court expressed surprise at this justification, emphasizing that the Executive authorities should have dealt with the matter without the need for judicial intervention. The Court invoked its jurisdiction under Article 32 and Article 142 of the Constitution to address the issue involving public interest and the adverse impact on a large number of individuals. The Court expected the Executive process to be activated after its intervention, reiterating the importance of government agencies taking necessary actions without specific directions from the Court.
In response to an affidavit filed by the Company and documents produced, which did not provide a clear picture as required, the Court appointed a Chartered Accountant to examine the company's accounts. M/s A.F Ferguson & Co., Delhi, was appointed for this purpose, with the fees and expenses to be borne by the Company. The Court directed the Company to deposit a sum of Rs. 5 lakhs within two weeks and instructed the Chartered Accountants to submit a report within 10 weeks, considering the contents of the writ petition, documents, and Court orders. Additionally, the Court prohibited the alienation or encumbrance of the company's fixed assets until the report is submitted.
The Court also directed the Central Government to file an affidavit detailing any action taken by the government or its agencies in the matter. The case was listed for further proceedings after the report was submitted by the Chartered Accountants, emphasizing the importance of a comprehensive examination of the company's accounts and actions taken by the authorities concerned.
-
1997 (11) TMI 543
Issues Involved:
1. Desertion by the wife.
2. Restitution of conjugal rights.
3. Assessment of evidence.
4. Granting of divorce.
5. Alimony and child support.
Issue-wise Detailed Analysis:
1. Desertion by the wife:
The appellant sought a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, alleging that the respondent had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. The court defined 'desertion' using various legal dictionaries and judicial precedents, emphasizing that it involves the withdrawal of one spouse from the society of the other without consent, without intimation, and with the intention of not returning. The court found that the respondent's actions on 20th April 1987, when she took away all her belongings and marriage gifts from the appellant's house, along with her mother, indicated her intention to desert the appellant. The court noted that the respondent's claim that she was willing to cohabit with the appellant was not supported by her actions, as she did not make any genuine attempts to reconcile or cohabitate after the separation.
2. Restitution of conjugal rights:
The respondent had filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, which was dismissed on 5-10-88 due to default. The court observed that the respondent did not take any steps to restore the dismissed petition or challenge the dismissal order, indicating a lack of genuine intent to reunite with the appellant. The court also noted that the respondent did not file any subsequent petitions for restitution of conjugal rights, further supporting the appellant's claim of desertion.
3. Assessment of evidence:
The court criticized the trial judge's approach to assessing the evidence, describing it as "slipshod and leading towards casualness." The court emphasized the importance of a careful and probing approach in matrimonial cases, especially those involving allegations of desertion. The court found that the trial judge failed to properly consider the evidence, including letters written by the respondent's family members, which indicated the respondent's short-tempered and dictatorial behavior. The court concluded that the evidence supported the appellant's claim that the respondent had deserted him with the intention of not returning.
4. Granting of divorce:
The court concluded that the appellant had proved that the respondent had deserted him for a continuous period of more than two years. Consequently, the court set aside the trial judge's decree dismissing the matrimonial petition and granted the appellant a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act. The court emphasized that the trial judge had erred in his appreciation of the evidence, leading to an erroneous conclusion against the appellant.
5. Alimony and child support:
The court clarified that the child, Samkeet, born out of the wedlock, is entitled to alimony as provided by law, and the respondent is entitled to avail legal processes for child support until the child is a minor. The court also stated that the respondent is entitled to seek legal remedies for alimony. The court did not address the topic of allegations of torture, leaving it open for the respondent to pursue through appropriate legal channels.
Conclusion:
The appeal was allowed, and the decree of the trial judge was set aside. The appellant was granted a decree of divorce, and provisions for alimony and child support were clarified. The court emphasized the importance of a careful assessment of evidence in matrimonial cases and criticized the trial judge's approach to the evidence in this case.
-
1997 (11) TMI 542
Issues Involved:
1. Legitimacy of the petition under Section 482 Cr. P.C.
2. Validity of the bail rejection by the Chief Judicial Magistrate.
3. Application for impleadment of Mukhtar Ansari as petitioner.
4. Request to treat Mukhtar Ansari as being in custody.
5. Modification of the order to stay Mukhtar Ansari's arrest.
6. Preliminary objections by C.B.I.
7. Jurisdiction and powers of the High Court under Section 482 Cr. P.C.
8. Compliance with the Supreme Court guidelines in D.K. Basu v. State of West Bengal.
Detailed Analysis:
1. Legitimacy of the petition under Section 482 Cr. P.C.:
The petition was filed under Section 482 Cr. P.C. by four individuals challenging the bail rejection. The court noted that the inherent power of the High Court to secure the ends of justice or prevent abuse of the process of the court is always present, but should be exercised sparingly and cautiously in rarest of rare cases. The court referenced several Supreme Court rulings, including *State of Haryana v. Bhajan Lal* and *State of H.P. v. Pirthi Chand*, emphasizing that interference at the stage of investigation should be exceptional.
2. Validity of the bail rejection by the Chief Judicial Magistrate:
The bail application was rejected by the Chief Judicial Magistrate on the grounds that the applicants were not in custody of that court. The court noted that the applicants were detained in Ghazipur Jail for another offense, and a 'B' warrant was issued by C.J.M. Varanasi for taking their custody. The court found that the matter required investigation by the C.B.I., as directed by the Division Bench.
3. Application for impleadment of Mukhtar Ansari as petitioner:
Mukhtar Ansari was allowed to be impleaded as petitioner No. 5 upon an application moved on 8-9-97. The court allowed this development, noting that there was no objection from the original applicants.
4. Request to treat Mukhtar Ansari as being in custody:
An application was filed by Mukhtar Ansari to be treated as in custody in the case crime No. 19 of 1997. The court heard the matter and passed a detailed order on 9-9-1997, ensuring adequate security for his production before the Chief Judicial Magistrate, Varanasi. It was left open for the concerned parties to apprise the Chief Judicial Magistrate about the order.
5. Modification of the order to stay Mukhtar Ansari's arrest:
Mukhtar Ansari sought modification of the 9-9-1997 order to stay his arrest during the C.B.I. investigation. The court examined the Division Bench's order and concluded that the C.B.I. was conducting an investigation, not merely an enquiry. The court decided to address the whole case rather than the application separately, noting that the applicant's prayer for staying his arrest was premature.
6. Preliminary objections by C.B.I.:
The C.B.I. raised a preliminary objection that the petition under Section 482 Cr. P.C. was not maintainable, arguing that the investigation was at an initial stage and interference would hamper it. The court referenced several Supreme Court decisions, including *Joginder Kumar v. State* and *State represented by the C.B.I. v. Anil Sharma*, to emphasize that arrest is part of the investigation and should not be interfered with lightly.
7. Jurisdiction and powers of the High Court under Section 482 Cr. P.C.:
The court discussed the jurisdiction and powers under Section 482 Cr. P.C., referencing the Full Bench decision in *Ramlal Yadav v. State of U.P.* and other Supreme Court rulings. The court emphasized that the power should be used sparingly and only in rare cases to prevent miscarriage of justice.
8. Compliance with the Supreme Court guidelines in D.K. Basu v. State of West Bengal:
The court directed that the guidelines issued in *D.K. Basu v. State of West Bengal* be followed by the C.B.I., especially those related to the arrest and handling of the arrestee, such as identification of police personnel, preparation of a memo of arrest, informing a friend or relative, and medical examination of the arrestee.
Conclusion:
The petition was dismissed as it was deemed premature and not fitting the criteria for rarest of rare cases. The court emphasized the need for compliance with the Supreme Court guidelines in *D.K. Basu v. State of West Bengal* during the arrest and interrogation process.
-
1997 (11) TMI 541
Issues:
- Determination of whether the Telecom Department of the Union of India qualifies as an industry under the Industrial Disputes Act, 1947.
Analysis:
The Supreme Court addressed the issue of whether the Telecom Department of the Union of India falls under the definition of 'industry' as per Section 2(j) of the Industrial Disputes Act, 1947. The Court highlighted that the amendment made in 1982 to the definition of 'industry' had not been enforced by the Central Government, making it irrelevant to the current case. The Court referred to the decision in Bangalore Water Supply case, emphasizing the need to consider the earlier definition of 'industry' in force. The Court noted that the crucial question was whether the Telecommunication Department of the Union of India could be classified as an 'industry' based on the existing definition.
The Court discussed the dominant nature test established in the Bangalore Water Supply case to determine whether an establishment qualifies as an 'industry.' The test considers the integrated nature of activities and the predominant nature of services provided. The Court observed that the Telecommunication Department of the Union of India engages in commercial activities and is not involved in sovereign functions, leading to the conclusion that it meets the criteria to be classified as an 'industry' under the Industrial Disputes Act.
The Court reviewed previous judgments, including the Theyyam Joseph case and the Bombay Telephone Canteen Employees' Association case, which held differing views on whether certain departments, including the Postal Department, were part of the sovereign functions of the state and thus not considered an 'industry.' The Court emphasized that the decisions in these cases conflicted with the seven-judge Bench decision in the Bangalore Water Supply case, which established the binding precedent. The Court upheld the decision in the Bangalore Water Supply case, stating that it was imperative to follow established precedents and judicial discipline.
In conclusion, the Court dismissed the appeal, affirming that the Telecommunication Department of the Union of India qualifies as an 'industry' under the Industrial Disputes Act, based on the dominant nature test and the precedents set by the Bangalore Water Supply case. The Court emphasized the importance of adhering to established legal principles and precedents in reaching its decision.
-
1997 (11) TMI 540
Issues Involved:
1. Liability for Shortage in Delivery of Cargo
2. Validity and Reliability of Evidence (Certificate of Inspection and Draft Survey)
3. Applicability of Charter Party Terms
4. Interpretation of Bill of Lading Clauses
5. Burden of Proof and Carrier's Liability
Detailed Analysis:
1. Liability for Shortage in Delivery of Cargo:
The appellants claimed a shortage of 220.850 M.T. of bulk urea upon delivery, alleging that the first defendant and their agents failed to exercise due care and diligence. The court noted that the entire loading and unloading operations were conducted by the charterers, free of risk and expense to the vessel. The bill of lading contained a clause stating "Weight, measure, quality, condition, contents and value unknown," which absolved the carrier from liability for the quantity mentioned. The court concluded that there was no negligence or want of care on the part of the first defendant, and any alleged shortage must have been due to short-loading at the port of shipment or handling during unloading operations.
2. Validity and Reliability of Evidence (Certificate of Inspection and Draft Survey):
The appellants relied on Ex. A-2, a Certificate of Inspection by O.C.M., Goods Control Office at Bucharest, and a draft survey report by J.B. Boda Marine and General Survey Agencies Limited. The court found that Ex. A-2 was not properly proved as the author was not examined, and thus, no reliance could be placed on it. Additionally, the court held that draft surveys are inherently inaccurate due to factors like swell and tidal conditions, density of water, and errors in reading the draft. Hence, the draft survey report was not considered reliable evidence of the quantity discharged.
3. Applicability of Charter Party Terms:
The shipment was subject to a charter party agreement dated 7th July 1981, which stipulated that the cargo was loaded and discharged by the charterers free of risk and expense to the vessel. The court emphasized that the first respondent did not participate in the loading or unloading operations, and the bill of lading's disclaimer clause further supported the carrier's non-liability for the alleged short landing.
4. Interpretation of Bill of Lading Clauses:
The bill of lading included a clause stating "Weight, measure, quality, condition, contents and value unknown," which the court interpreted as a clear disclaimer of responsibility for the quantity of goods shipped. The court cited several precedents, including judgments in *Nippon Yeesan Kalsha Limited v. Union of India* and *M/s. Thakur Shipping Company Limited, Bombay v. Food Corporation of India*, which supported the view that such clauses absolve carriers from liability for the quantity declared by shippers.
5. Burden of Proof and Carrier's Liability:
The court held that the burden of proving the actual quantity shipped was on the appellants, who failed to provide independent evidence beyond the bill of lading. The court referenced Section 5 of the English Carriage of Goods by Sea Act and Section 6 of the Indian Carriage of Goods by Sea Act, which state that in the case of bulk cargo, the quantity mentioned in the bill of lading is not prima facie evidence against the carrier. Therefore, the first defendant was not liable for the alleged short landing.
Conclusion:
The court dismissed the appeal, concluding that the first defendant was not liable for the alleged short delivery of bulk urea. The evidence provided by the appellants was deemed unreliable, and the terms of the charter party and bill of lading protected the carrier from liability. The appeal was dismissed with no costs.
-
1997 (11) TMI 539
Issues Involved:
1. Maintainability of the petition under Section 248/250 of the Companies Act, 1956.
2. Whether a petition under Section 250(1) can be filed independently.
3. Invocation of powers under Section 248 in proceedings under Section 250(1).
4. The role of the Company Law Board (CLB) in collecting information and providing relief under the relevant sections.
Issue-wise Detailed Analysis:
1. Maintainability of the petition under Section 248/250 of the Companies Act, 1956:
The respondents raised several preliminary objections regarding the maintainability of the petition under Sections 248 and 250. They argued that no petition can be filed under Section 248 as it deals with the "suo motu" powers of the Company Law Board. They also contended that Section 250(1) deals only with interim relief and not final relief, and thus, no independent petition can lie under this section. Additionally, they claimed that since the petitioners had previously withdrawn their petition under Sections 247/250, the current petition could not proceed. The order concluded that the petition under Section 248/250 could not be maintained, as the powers conferred under Section 250(1) are limited and no final order can be passed after collecting information under Section 248.
2. Whether a petition under Section 250(1) can be filed independently:
The respondents argued that an independent petition under Section 250(1) is not maintainable, as this section deals only with interim relief. However, the petitioners relied on the precedent set in Padma Taparia v. Assam Brook Ltd., which held that an independent complaint under Section 250(1) is entertainable. The judgment clarified that Section 250(1) allows for independent proceedings, and a complaint can be made under this section, provided it is with reference to situations contemplated under Sections 247, 248, or 249. The judgment reaffirmed the maintainability of a petition under Section 250(1).
3. Invocation of powers under Section 248 in proceedings under Section 250(1):
The judgment examined whether the powers under Section 248 could be invoked in proceedings under Section 250(1). It was concluded that Section 248 is silent on the follow-up action after collecting information, and the Company Law Board does not have the scope to provide relief under Section 250(1) after collecting information under Section 248. Therefore, the petition under Section 248/250 was dismissed as not maintainable, as the Company Law Board's role under Section 250(1) is limited to finding out relevant facts about the shares and imposing restrictions as provided in Sub-section (2).
4. The role of the Company Law Board (CLB) in collecting information and providing relief under the relevant sections:
The judgment emphasized that the Company Law Board's role is not to collect evidence for the benefit of a party in a proceeding. The Board can order an investigation under Section 247(1A) if it finds good reasons to do so, but it cannot use the information collected under Section 248 to provide relief to the petitioners under Section 250(1). The judgment clarified that the Company Law Board's powers under Section 250(1) are similar to those in Sections 235 and 237, where the role of the Board ends with the declaration or opinion, and further action rests with the Central Government.
Conclusion:
The petition under Sections 248/250 was dismissed as not maintainable. The judgment reaffirmed the maintainability of an independent petition under Section 250(1) but clarified that the powers under Section 248 could not be invoked in such proceedings. The Company Law Board's role is limited to finding out relevant facts about the shares and imposing restrictions as provided in Section 250(2), without providing further relief based on the information collected.
-
1997 (11) TMI 538
Issues Involved:
1. Custody of the child.
2. Declaration of marriage as null and void.
3. Violation of court orders by the appellant.
Summary:
Issue 1: Custody of the Child
The Supreme Court addressed the appeals concerning the custody of the child, Abhijeet. The Family Court and High Court had previously granted custody to the respondent-father based on his financial capacity to provide superior education in the USA. The Supreme Court found that this sole reason was insufficient to shift custody from the appellant-mother, who had been caring for the child for over 12 years. The Court emphasized that the welfare of the child includes not just material considerations but also emotional and moral well-being. The Court also noted that the appellant's previous custody orders from the High Court and under the Guardian & Wards Act, 1890, were binding and operated as res judicata, requiring proof of substantial change in circumstances to justify a shift in custody. The Court did not find any such substantial change between 1990 and 1993 or 1997.
Issue 2: Declaration of Marriage as Null and Void
The appellant initially sought a declaration that her marriage to the respondent was null and void due to the respondent's previous subsisting marriage. However, during the proceedings, the appellant stated that she did not wish to pursue this matter further. Consequently, the earlier decree of divorce between the appellant and respondent was treated as final.
Issue 3: Violation of Court Orders by the Appellant
The respondent argued that the appellant's removal of the child from the USA to India in violation of US court orders and her failure to produce the child before the Bombay High Court should disqualify her from having custody. The Supreme Court rejected this contention, stating that the paramount welfare of the child overrides such violations. The Court cited various precedents, including McKee vs. McKee (1951 AC 352) and Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw & Another (1987 2 SCC 42), to support its decision that the welfare of the child is the primary consideration.
Additional Considerations:
The Supreme Court interviewed the child, who expressed a desire to continue his studies in India and stay with his mother. The Court granted visitation rights to the respondent-father, allowing him to visit the child in Pune under specific conditions but denied temporary custody to avoid disrupting the child's education and well-being.
Conclusion:
The Supreme Court allowed the appellant-mother's appeal against the Family Court's order granting custody to the respondent-father and dismissed the respondent's application for custody. The appeal concerning the declaration of marriage as null and void was dismissed as not pressed. The Court also directed the withdrawal of any subsisting bailable warrants against the appellant.
-
1997 (11) TMI 537
Issues Involved:
1. Maintainability of the petition under Section 397/398 of the Companies Act.
2. Validity of the board meetings held on 24-05-1995, 01-09-1995, and 26-10-1995.
3. Validity of the allotment of further shares on 26-10-1995.
4. Allegations of oppression and mismanagement.
5. Reliefs sought by the petitioner.
Detailed Analysis:
1. Maintainability of the Petition under Section 397/398 of the Companies Act:
The respondents challenged the maintainability of the petition on the grounds that the petitioner did not meet the requirements of Section 399 of the Act. They argued that the petitioner did not hold the requisite percentage of shares as additional shares had been allotted to nine other shareholders before the filing of the petition. The petitioner contended that the allotment of shares was fabricated and sought a declaration that the issue was null and void. The Board found that the return of allotment was filed with the Registrar on 20-11-1995, indicating that the shares were allotted before the petition was filed on 29-11-1995. Thus, the petitioner's claim did not satisfy Section 399 requirements, making the petition not maintainable.
2. Validity of the Board Meetings Held on 24-05-1995, 01-09-1995, and 26-10-1995:
The petitioner disputed the validity of the board meetings, asserting that no such meetings took place and that the minutes were fabricated. The respondents provided evidence that the petitioner attended the meetings on 24-05-1995 and 01-09-1995, and that the 3rd respondent was inducted into the board in the meeting on 01-09-1995. The Board found overwhelming evidence supporting the respondents' claims, including the implementation of decisions taken in these meetings with the petitioner's knowledge. The Board concluded that the meetings were valid and held with the petitioner's participation.
3. Validity of the Allotment of Further Shares on 26-10-1995:
The petitioner argued that the allotment of shares on 26-10-1995 was invalid due to the lack of quorum, as he did not attend the meeting. The respondents contended that the meeting had a valid quorum with the presence of the 2nd and 3rd respondents. The Board confirmed that the 3rd respondent was validly inducted into the board on 01-09-1995, making the quorum for the meeting on 26-10-1995 valid. Consequently, the allotment of shares was upheld, and the petitioner's claim was dismissed.
4. Allegations of Oppression and Mismanagement:
The petitioner alleged various acts of oppression and mismanagement, including being excluded from the management, manipulation of board resolutions, and unauthorized issuance of shares. The respondents countered these allegations, stating that the petitioner was never authorized to manage the hotel and that the board meetings and decisions were valid. The Board found that the petitioner failed to provide sufficient evidence to support his claims of oppression and mismanagement. The Board noted that the petitioner's grievances appeared to stem from his removal from the position in HRH, rather than genuine concerns about the company's management.
5. Reliefs Sought by the Petitioner:
The petitioner sought multiple reliefs, including the appointment of an administrator, restraining the respondents from removing him from the board, and declaring various board resolutions as null and void. The Board dismissed these reliefs, finding no merit in the petitioner's claims. The Board held that the meetings on 24-05-1995, 01-09-1995, and 26-10-1995 were valid, and the decisions taken therein were legitimate. The Board also dismissed the petitioner's request to declare the issue of further shares as null and void, as the allotment was found to be valid.
Conclusion:
The petition was dismissed both on the grounds of non-maintainability and lack of merit. The Board found that the petitioner did not meet the requirements of Section 399 of the Companies Act and failed to provide sufficient evidence to support his claims of oppression and mismanagement. The Board upheld the validity of the board meetings and the allotment of further shares. The petitioner's request for various reliefs was denied, and the Board suggested that the respondents consider compensating the petitioner as a matter of compromise, which the petitioner rejected. The petition was dismissed without any order as to cost.
........
|
9911796707
