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2003 (12) TMI 688
Issues:
1. Violation of section 8(3) and 8(4) of the Foreign Exchange Regulation Act.
2. Intervention by the Forum regarding penalty imposition.
Detailed Analysis:
1. The judgment pertains to an appeal from orders of the Deputy Director of Enforcement, Bangalore, regarding violations of section 8(3) and 8(4) of the Foreign Exchange Regulation Act. The company and its Directors were charged with acquiring and remitting foreign exchange without submitting the required documentation to the bank, contravening the Act's provisions. The Adjudication Officer found the noticees guilty and imposed a penalty, leading to the appeal by the company and co-noticees.
2. The central issue for the Forum to decide was whether the findings and penalty imposed warranted intervention. The appellant argued that the default in import documentation was due to the Port Trust's actions and not wilful default on their part. However, evidence showed that the goods were not received in India, leading to a breach of the Act's provisions. The Adjudicating Officer's findings were deemed legally sound, and the appellant's arguments were found to lack merit.
3. Regarding the penalty, the appellant contended that there was no guilty intent in the default. Despite this claim, the failure to import the goods and the company's silence on the matter indicated a culpable mindset, inferring mens rea. However, considering mitigating circumstances such as significant losses incurred by the company, a reduced penalty of Rs. 15,000 was deemed appropriate. The penalty was divided between the company and its Directors, with the modified amounts being Rs. 10,000 for the company and Rs. 2,500 each for the Directors.
4. Ultimately, the appeal was partly allowed, concurring with the findings of guilt and modifying the penalty to Rs. 15,000. The company was directed to deposit Rs. 10,000 accordingly. The judgment highlighted the importance of complying with foreign exchange regulations and the consequences of non-compliance, even in cases where intent may be disputed.
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2003 (12) TMI 687
Issues:
1. Closure of unlicensed saw mills and prohibition of new saw mills without permission.
2. Cancellation of licenses of saw mills within forest areas.
3. Granting of licenses by the respondent in violation of court orders.
4. Respondent's defense and explanation.
5. State government's position on the matter.
6. Contempt of court and punishment imposed.
Analysis:
Issue 1:
The Supreme Court directed the closure of all unlicensed saw mills and prohibited the opening of new ones without prior permission to protect forest wealth and prevent illegal timber utilization.
Issue 2:
Under the Orissa Saw Mills and Saw Pits (Control) Act, 1991, licenses of five saw mills were canceled for being within prohibited distances from forest boundaries, with some appeals filed against the cancellation.
Issue 3:
The respondent, a Divisional Forest Officer, granted licenses to the saw mills despite the court order and recommendations from the Central Empowered Committee, leading to a contempt of court charge.
Issue 4:
In his defense, the respondent claimed ignorance of the court order and renewal of licenses in good faith, but the State Government disputed this, stating the licenses were granted in violation of the law and previous dismissals of appeals.
Issue 5:
The Court found the respondent's actions in clear violation of its order, rejecting his apology and noting negligence in failing to recall licenses despite knowing of the court order, leading to a reprimand, warning, and a fine of Rs. 50,000 imposed on the respondent.
Issue 6:
The Court concluded that the respondent's actions constituted contempt of court by overreaching the court order, leading to the imposed punishment as a deterrent against future violations and for environmental protection.
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2003 (12) TMI 686
Issues:
1. Interpretation of exemption notification 67/95 regarding captively consumed goods.
2. Ownership requirement for availing exemption under the notification.
3. Applicability of extended period of limitation.
4. Allegations of duty evasion and penalty imposition.
Analysis:
Issue 1: Interpretation of exemption notification 67/95
The case involved Natraj Ceramics & Chemical Inds. Ltd. receiving raw bauxite for job work without paying duty on the calcined bauxite used in manufacturing excisable goods. The Commissioner imposed duty and penalty, alleging an attempt to evade duty. The appellants argued that the job worker need not own the goods for exemption under notification 67/95, and the Commissioner's reasoning was flawed. They contended that no loss occurred to the department, and the exemption would still apply if the job worker had purchased the raw bauxite.
Issue 2: Ownership requirement for exemption
The Commissioner's view that the absence of ownership by the job worker was not a part of the notification was challenged. The Tribunal found no merit in the Commissioner's case, noting that the supplier of raw bauxite was exempted from duty, and notification 214/86 did not apply. The notification 67/95 provided exemption to the supplier of raw material or intermediate products, and the claim was optional, which the owner of raw material did not exercise. The Tribunal concluded that the method used did not contravene Central Excise law and did not result in revenue loss.
Issue 3: Applicability of extended period of limitation
The appellants questioned the applicability of the extended period of limitation, which the departmental representative supported. However, the Tribunal did not address this argument in detail as it found the primary issue of exemption interpretation to be decisive.
Issue 4: Allegations of duty evasion and penalty imposition
The Tribunal allowed the appeal and set aside the impugned order, indicating that the arrangement between the parties did not violate Central Excise law and did not lead to revenue loss. The Tribunal emphasized that the peculiar method employed was not contrary to law and did not result in any loss to the department, thus overturning the duty demand and penalty imposition.
In conclusion, the Tribunal's decision focused on the interpretation of the exemption notification, emphasizing that the job worker's ownership of goods was not a prerequisite for availing the exemption. The Tribunal found no merit in the Commissioner's reasoning and set aside the duty demand and penalty, highlighting that the arrangement did not violate Central Excise law or cause revenue loss.
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2003 (12) TMI 685
Issues Involved:
1. Whether the Magistrate can permit a person against whom a complaint is filed to participate in the proceedings for adjudicating guilt or otherwise during an inquiry under Section 202 of the Code of Criminal Procedure, 1973.
Issue-wise Detailed Analysis:
1. Participation of the Accused in Section 202 Inquiry:
The primary legal question was whether the Magistrate, while holding an inquiry into a complaint under Section 202 of the Code of Criminal Procedure, 1973 (Cr.P.C.), can permit the person against whom the complaint is filed to participate in the proceedings. The court emphatically answered "No," citing the provisions of Section 202 Cr.P.C. The purpose of an inquiry under Section 202 is to ascertain whether the complaint has a valid foundation for issuing process, not to conduct a trial or adjudicate guilt.
2. Procedure Adopted by the Chief Metropolitan Magistrate:
The Chief Metropolitan Magistrate allowed the respondents to participate in the proceedings, file affidavits, and written submissions, which was deemed inappropriate. The court highlighted that the inquiry under Section 202 Cr.P.C. is not a trial but a preliminary step to determine whether there is sufficient ground to proceed. The Magistrate's decision should be based solely on the allegations in the complaint and the statements of the complainant and witnesses, without considering the respondent's version or evidence.
3. Legal Precedents and Interpretations:
The court referred to several legal precedents, including the Supreme Court's rulings in *Chandra Deo Singh v. Prokash Chandra Bose* and *Dr. S.S. Khanna v. Chief Secretary, Patna*, which clarified that an accused person does not have the right to participate in the proceedings under Section 202 Cr.P.C. until process is issued. The accused can be present as a member of the public but cannot produce evidence, cross-examine witnesses, or participate in the proceedings in any capacity that influences the inquiry.
4. Violation of Procedural Norms:
The court found that the procedure adopted by the Chief Metropolitan Magistrate violated the provisions of Section 202 Cr.P.C. By allowing the respondents to file affidavits and written submissions, the Magistrate indulged in adjudicating the guilt or otherwise of the respondents, which is not permissible at the pre-summoning stage.
5. Restoration and Directions for Further Proceedings:
The court allowed the petition, set aside the impugned order, and revived the complaint. The trial court was directed to decide the matter independently of the affidavits filed by the respondents and solely based on the allegations in the complaint and the statements of the complainant and witnesses. The petitioner was instructed to appear before the Chief Metropolitan Magistrate on a specified date for further proceedings.
Conclusion:
The judgment emphasized that an inquiry under Section 202 Cr.P.C. is not a trial and should be conducted without the participation of the person against whom the complaint is filed. The Magistrate's role is to determine whether there is sufficient ground to proceed based on the complainant's evidence, without considering the respondent's defense at this stage. The court's decision reinstated the complaint and directed the trial court to proceed in accordance with the correct legal procedures.
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2003 (12) TMI 684
Issues:
1. Whether Respondent No. 1 was considered a teacher employed by Petitioner No. 1 - Basic Shiksha Parishad, Allahabad.
Analysis:
The case revolved around the employment status of Respondent No. 1, who claimed to have been appointed as an Assistant Teacher in a school and later faced termination without proper documentation. The Basic Shiksha Parishad contended that she was never their employee due to lack of evidence. The Tribunal rejected her Claim Petition citing delay and lack of proof of her appointment. However, the High Court, relying on documents provided by Respondent No. 1, found in her favor. The High Court highlighted the obligation of the Basic Education Board to explain the non-transfer of employees under the law. It ruled that her service was transferred to the Parishad and she was entitled to salary for the preceding years until superannuation based on revised pay scales.
The Supreme Court analyzed whether Respondent No. 1 was in service on the relevant date. It noted that the Tribunal's decision solely based on the absence of an appointment letter was unfounded. In contrast, the High Court's reliance on transfer orders, joining reports, and payment of arrears indicated her valid service. The Court upheld the High Court's decision, emphasizing that her service was transferred by law to the Basic Shiksha Parishad. The Court rejected the contention that she was never in service, emphasizing the lack of termination orders and the continuous accrual of salary, providing her a continuing cause of action. The Court affirmed the High Court's ruling on her entitlement to compensation equivalent to three preceding years' salary before superannuation based on revised pay scales.
In conclusion, the Supreme Court dismissed the Petition and directed the implementation of the High Court's order within three months. The judgment affirmed Respondent No. 1's status as a teacher employed by the Basic Shiksha Parishad, entitling her to compensation and salary for the preceding years before superannuation.
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2003 (12) TMI 683
Issues Involved:
1. Legality of the arrest of the detenu.
2. Compliance with Article 22(1) of the Constitution of India.
3. Validity of the detention and the remedy available.
Issue-wise Detailed Analysis:
1. Legality of the arrest of the detenu:
The detenu was arrested on 11.4.2003 under various sections of the IPC and the Arms Act, and later, the Prevention of Terrorism Act, 2002 (P.O.T.A.) was invoked. The petitioner argued that the arrest was conducted without following mandatory requirements, making the custody illegal. The petitioner specifically highlighted that the detenu was not informed of the reasons for his arrest at the time of arrest, which is a clear violation of his guaranteed rights.
2. Compliance with Article 22(1) of the Constitution of India:
Article 22(1) mandates that no person shall be detained without being informed of the grounds for such arrest. The petitioner argued that the detenu was not informed of the reasons for his arrest, and the respondents failed to counter this claim effectively. The court found that the detenu was indeed arrested without being informed of the reasons, both at the time of his initial arrest and when he was subsequently arrested under a different case number.
3. Validity of the detention and the remedy available:
The court examined whether the failure to inform the detenu of the reasons for his arrest rendered the custody illegal. It referred to several Supreme Court judgments, including Makhan Singh V. State Of Punjab (AIR 1952 SC 27) and Ram Narayan Singh V. State Of Delhi (AIR 1953 SC 277), which emphasized that deprivation of personal liberty must strictly follow the procedure established by law. The court concluded that the failure to comply with Article 22(1) made the arrest and subsequent custody illegal. The court also noted that the subsequent remand orders could not cure the constitutional infirmities arising from the initial illegal arrest.
Conclusion:
The court held that the detenu's arrest and custody were illegal due to the violation of Article 22(1) of the Constitution. However, instead of granting unconditional release, the court directed the release of the detenu on bail with specific conditions. The detenu was required to furnish a bond and sureties, report to the Special Court regularly, and not leave the jurisdiction without permission. The Habeas Corpus Petition was allowed on these terms.
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2003 (12) TMI 682
Issues:
1. Whether credit can be taken under Rule 57Q for duty paid on moulds used in job work.
2. Interpretation of rules regarding ownership of capital goods for taking credit.
3. Applicability of Tribunal's decision in similar cases.
4. Validity of denying credit based on ownership of capital goods.
Analysis:
The appeal in question dealt with the issue of whether a manufacturer conducting job work using moulds owned by another party could claim credit under Rule 57Q for duty paid on those moulds. The Commissioner had disallowed the credit, imposed penalties, and ordered confiscation of the moulds, citing lack of ownership by the manufacturer. The appellant argued that ownership was not a mandatory criterion during the relevant period and relied on a Tribunal decision in German Remedies v. CCE, which supported their position. The departmental representative contended that this decision was not presented before the Commissioner.
The Tribunal analyzed Rule 57R(3) both before and after its amendment on 17.6.1994. Prior to the amendment, credit on capital goods not directly purchased by the manufacturer was prohibited. However, post-amendment, Sub-rule (3) allowed credit for capital goods acquired through lease, hire purchase, or loan, subject to specified conditions. The Tribunal concluded that this amendment did not restrict credit to goods acquired from finance companies only, but applied to any manner of acquisition specified in the rule. The Tribunal's decision in a similar case supported the appellant's entitlement to credit on goods received under a bailment agreement.
The Tribunal found that the denial of credit based solely on lack of ownership of the capital goods by the manufacturer was unsustainable. Consequently, the appeals were allowed, the impugned order was set aside, and consequential relief was granted in accordance with the law. This judgment clarifies the interpretation of rules regarding ownership of capital goods for claiming credit under Rule 57Q and emphasizes that ownership is not a decisive factor for credit eligibility in certain circumstances.
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2003 (12) TMI 681
The Supreme Court of India dismissed the appeals challenging the order of the Customs, Excise and Gold (Control) Appellate Tribunal.
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2003 (12) TMI 680
Issues:
1. Relief from substantive sentence of imprisonment for six months.
2. Payment of fine by the petitioner.
3. Exercise of extraordinary power and jurisdiction under Article 226 of the Constitution and Section 482 of the Cr.P.C for compounding of offence.
4. Suspension of sentence for a lady aged 60.
Analysis:
1. The respondent, the original complainant, personally present in court, agreed to grant relief to the petitioner by being relieved of the substantive sentence of imprisonment for six months.
2. The petitioner's counsel assured that the fine would be paid by the returnable date. It was acknowledged that no pending proceedings existed after the conviction and confirmation by the Additional Sessions Judge, with a Revision Application already dismissed.
3. The petitioner's counsel argued for the exercise of extraordinary power under Article 226 of the Constitution and Section 482 of the Cr.P.C to compound the offence, citing relevant case laws. The court noted the prohibition on compounding offences except as provided by Section 320 of the Cr.P.C.
4. The petitioner, a 60-year-old lady, had enjoyed suspension of sentence by the Vadodara Sessions Judge. Due to the impending expiration of the suspension order, the court ordered the continuation of the suspension until the next date, considering the circumstances.
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2003 (12) TMI 679
Issues Involved:
1. Jurisdiction of the Assistant Commandant to record conviction and impose sentence.
2. Applicability of the Code of Criminal Procedure, 1973, and the Central Reserve Police Force Act, 1949.
3. Nature of offences under the Central Reserve Police Force Act, 1949.
4. Appropriate sentence for the convicted respondent.
Detailed Analysis:
1. Jurisdiction of the Assistant Commandant to Record Conviction and Impose Sentence:
The Sessions Judge and the High Court of Himachal Pradesh held that the Assistant Commandant lacked jurisdiction to record conviction and impose sentence under Section 10(m) of the Central Reserve Police Force Act, 1949 (the 'Act'). They reasoned that the Assistant Commandant could not exercise powers of a Judicial Magistrate 1st Class without the High Court's conferment of such powers, especially after the separation of judiciary from the Executive in 1973. However, the Supreme Court noted that Section 16(2) of the Act allows the Central Government to invest the Commandant or Assistant Commandant with magisterial powers for trying offences under the Act, overriding the Code of Criminal Procedure, 1973 (the 'Code'). This provision was overlooked by the lower courts, leading to their erroneous conclusions.
2. Applicability of the Code of Criminal Procedure, 1973, and the Central Reserve Police Force Act, 1949:
The Supreme Court emphasized that the Act is a special law with its own set of offences and punishments, distinct from ordinary criminal law. Section 4(2) of the Code permits actions under any law other than the Indian Penal Code, while Section 5 of the Code saves special laws from being overridden by the Code. The Act's provisions, including Section 16(2), specifically empower certain authorities within the CRPF to exercise magisterial powers, thus making the Assistant Commandant's actions valid under the Act.
3. Nature of Offences under the Central Reserve Police Force Act, 1949:
The Act creates new classes of offences specific to the disciplined forces, such as unauthorized absence, which are not offences under ordinary criminal law. Sections 9 and 10 of the Act categorize these as 'more heinous' and 'less heinous' offences, respectively. The Supreme Court noted that the Assistant Commandant acted within his jurisdiction to try and convict the respondent for unauthorized absence, a 'less heinous' offence under Section 10(m) of the Act.
4. Appropriate Sentence for the Convicted Respondent:
The Supreme Court acknowledged the necessity of stringent punishment for acts of indiscipline in disciplined forces like the CRPF. Although the Assistant Commandant sentenced the respondent to three months' imprisonment, the Supreme Court modified the sentence to a fine equivalent to two months' pay, considering it sufficient to meet the ends of justice. This alteration was not to diminish the gravity of the offence but to balance deterrence and fairness.
Conclusion:
The Supreme Court concluded that the Assistant Commandant had the jurisdiction to try and convict the respondent under the Act, and the provisions of the Act took precedence over the general provisions of the Code. The Assistant Commandant's exercise of magisterial powers was lawful, and the respondent's conviction was upheld. However, the sentence was modified to a fine of two months' pay, reflecting a balanced approach to discipline and justice. The appeal was allowed to the extent of altering the punishment.
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2003 (12) TMI 678
Issues involved:
1. Alteration of charges during criminal trial.
2. Jurisdiction of trial courts in framing charges.
3. High Court's power to quash charges under section 482 of the Code of Criminal Procedure.
4. Assessment of evidence at the stage of framing charges.
5. Prejudice caused by premature findings on charges.
6. Appropriate stage for altering or modifying charges based on evidence.
Analysis:
1. The judgment addresses the issue of alteration of charges during a criminal trial. It emphasizes that trial courts have the authority to alter charges based on the evidence adduced in the case. If a trial is before a Magistrate and indicates a need for trial by a superior court, the case can be committed to a superior court. Conversely, if a Sessions Court finds evidence for a lesser offense than charged, it can convict for the lesser offense. The framing of charges is best left to the trial court to avoid protracted proceedings due to intervention by superior courts.
2. The case involved the respondent originally charged with multiple offenses triable by a Magistrate. The charges were based on a complaint by a Police Constable. The charges were modified to include a more serious offense exclusively triable by a Sessions Court, leading to the case being committed to the Court of Sessions for trial.
3. The High Court, in a petition under section 482 of the Code, quashed the charge under the more serious offense while maintaining other charges. The State of Maharashtra appealed against this decision, arguing that the High Court prematurely weighed evidence and pre-judged the issue, hindering the lower courts from properly assessing evidence and altering charges if necessary.
4. The judgment highlights that at the stage of framing charges, the High Court should consider whether, if the prosecution's evidence is believed, it would constitute an offense. The sufficiency and truthfulness of evidence should be assessed during the trial, not at the charge-framing stage. Premature findings on the nature of the offense can prejudice the trial process.
5. The courts noted that the Sessions Court and the High Court had expressed almost conclusive opinions on the nature of the offense, which could prejudice the trial. The judgment emphasized setting aside these findings and leaving it to the trial court to decide on charges based on evidence presented during the trial.
6. The judgment concluded that the trial should proceed based on the charges framed by the Magistrate, with the flexibility to alter or modify charges at an appropriate stage based on the evidence. The decision-making process should not be influenced by previous court findings, ensuring a fair trial without prejudice. The judgment clarified that observations made were solely for the purpose of appeal disposal, without expressing any opinion on the case's merits.
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2003 (12) TMI 677
The Supreme Court of India dismissed the Special Leave Petition as it had become infructuous since the five-year period had already lapsed. The question of law was left open. (Citation: 2003 (12) TMI 677 - SC)
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2003 (12) TMI 676
Issues Involved:
1. Non-compliance with Section 42 of the NDPS Act.
2. Non-compliance with Section 50 of the NDPS Act.
3. Non-compliance with Section 52A of the NDPS Act.
4. Presumption under Sections 35 and 54 of the NDPS Act.
Detailed Analysis:
1. Non-compliance with Section 42 of the NDPS Act:
The defense argued that the prosecution violated Section 42 of the NDPS Act by not recording the prior information received and failing to examine the Deputy Commissioner of Excise who initially received the information. The court noted that the place of seizure was a public place, thus Section 43, not Section 42, was applicable. Section 43 deals with the power of seizure and arrest in public places, and the court found that the actions taken by the officers were in accordance with this provision. The court held that since the seizure occurred in a public place, the requirement to record the information under Section 42 did not apply.
2. Non-compliance with Section 50 of the NDPS Act:
The defense contended that the provisions of Section 50 were not complied with, arguing that the appellant was not informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer. The court referred to multiple Supreme Court decisions, including Madan Lal v. State of Himachal Pradesh, which clarified that Section 50 applies only to personal searches and not to searches of vehicles, containers, or bags. Since the contraband was recovered from a plastic bag carried by the appellant, Section 50 was deemed inapplicable.
3. Non-compliance with Section 52A of the NDPS Act:
The defense argued that the prosecution violated Section 52A, which deals with the disposal of seized narcotic drugs and psychotropic substances. They claimed that the prosecution did not adequately account for the sample's custody from seizure to analysis. The court found that the samples were sent to the laboratory the day after the seizure, with the seals intact, and there was no delay in the process. The court concluded that the minor discrepancy in the sample weight did not affect the credibility of the prosecution's case.
4. Presumption under Sections 35 and 54 of the NDPS Act:
The prosecution argued that the appellant failed to rebut the presumption of culpable mental state under Section 35 and the presumption of possession under Section 54. The court agreed, noting that the appellant could not provide a satisfactory explanation for possessing the contraband. The court held that the prosecution had successfully established the appellant's guilt beyond a reasonable doubt based on the consistent and credible evidence presented.
Conclusion:
The court dismissed the appeal, affirming the conviction and sentence. The court found that the prosecution had complied with the relevant provisions of the NDPS Act and that the appellant's arguments regarding non-compliance were without merit. The evidence presented by the prosecution was deemed credible and sufficient to establish the appellant's guilt under Section 21 of the NDPS Act.
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2003 (12) TMI 675
Applicability of Section 197 to retired public servants - Scope and ambit of Section 197 of the Code of Criminal Procedure, 1973 - commission of offences punishable u/s 120-B, Section 420 read with Section 511 of the Indian Penal Code, 1860 ('IPC'), Section 5(2) (1)(d) of the Prevention of Corruption Act, 1947 ('Old Act') corresponding to Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('New Act') - HELD THAT:- Section 197(1) provides that when any person who is or was a public servant not removable from his, office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting on purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance of this observation that, the expression "was" come to be employed after the expression "is" to make the sanction applicable even in cases where a retired, public servant is sought to be prosecuted.
Both Amrik Singh [1955 (2) TMI 29 - SUPREME COURT] and Shreekantiah [1954 (12) TMI 34 - SUPREME COURT] were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction u/s 197 of the Code is, therefore, no bar.
Above being the legal position which is fairly well settled, the High Court's view cannot be maintained on the facts of the case. The impugned judgments are set aside. We make it clear that our interference shall not be construed as if we have expressed any opinion on the merits of the case.
Appeals are allowed to the extent indicated.
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2003 (12) TMI 674
Issues Involved:
1. Maintainability of Miscellaneous Civil Applications for review of the Full Bench judgment dated 13-3-2003.
2. Jurisdiction and power of review by the Full Bench under Article 226 of the Constitution of India.
3. Advisory and consultative jurisdiction of the Full Bench.
4. Impact of the Full Bench's decision on subsequent Division Bench judgments and finality of litigation.
Detailed Analysis:
1. Maintainability of Miscellaneous Civil Applications for Review of the Full Bench Judgment:
Mr. Deshpande, representing non-applicant No. 1, argued that the power of review is not inherent and must be conferred by law or statute. He contended that no provision or statute grants the Full Bench the power to review its own decisions, making the Miscellaneous Civil Applications for review not maintainable. The court upheld this preliminary objection, stating that the power of review must be conferred by law and is not inherently available to the Full Bench.
2. Jurisdiction and Power of Review by the Full Bench under Article 226:
Mr. Bhangde, representing the applicants, argued that the Full Bench exercised its jurisdiction under Articles 226 and 227 of the Constitution, thereby inherently possessing the power of review. He contended that Rule 7 of Chapter-I of the Bombay High Court Appellate Side Rules, 1960, only provides the procedure for referring matters to the Full Bench and does not define the source of its jurisdiction. The court, however, concluded that the Full Bench's jurisdiction was not under Article 226 but was advisory and consultative, thus lacking the inherent power of review.
3. Advisory and Consultative Jurisdiction of the Full Bench:
The court examined whether the Full Bench exercised jurisdiction under Article 226 while answering the questions referred to it. It noted that Rule 7 of Chapter-I of the Bombay High Court Appellate Side Rules allows a Single Judge or Division Bench to refer matters to a Larger Bench for resolving legal inconsistencies. The Full Bench's role was to provide an advisory opinion on the legal questions referred to it, not to exercise original jurisdiction under Article 226. The court emphasized that the Full Bench's jurisdiction was distinct, separate, and advisory, not akin to the jurisdiction under Article 226.
4. Impact of the Full Bench's Decision on Subsequent Division Bench Judgments and Finality of Litigation:
The court highlighted that after the Full Bench's judgment on 13-3-2003, the Division Benches applied the law laid down by the Full Bench to finally dispose of the respective writ petitions under Article 226. The Division Benches' decisions rendered finality to the litigation. The court noted that allowing the review applications would invalidate the Division Benches' decisions and actions taken pursuant to those directions. It emphasized the importance of finality in litigation and dismissed the Miscellaneous Civil Applications as not maintainable.
Conclusion:
The court upheld the preliminary objection regarding the maintainability of the Miscellaneous Civil Applications for review of the Full Bench judgment dated 13-3-2003. It concluded that the Full Bench exercised advisory and consultative jurisdiction, not original jurisdiction under Article 226, and thus lacked the inherent power of review. The Division Benches' decisions, based on the Full Bench's judgment, were final and could not be reopened through the review applications.
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2003 (12) TMI 673
Issues:
Conviction under Sections 120B IPC, 161, 5(1)(d) of Prevention of Corruption Act, 1947; Reduction of sentence by High Court; Application of Section 196(2) of Code of Criminal Procedure; Presumption of guilt under Section 4 of the Act; Interpretation of Section 5(1)(d) of the Act; Official act under Section 161 IPC; Involvement of A-2 in conspiracy; Legal arguments; Factual arguments; Support from case laws; Leniency in sentencing.
Conviction under Sections 120B IPC, 161, 5(1)(d) of Prevention of Corruption Act, 1947:
The appellants were convicted for offences under these sections and sentenced by the Special Judge, Anti-Corruption (Central), U.P., Lucknow. The High Court of Allahabad, Lucknow, upheld the conviction but reduced the sentence. The case involved bribery demands by A-1, a public servant, to return a document to PW-3, leading to a trap set by CBI resulting in the conviction of the appellants.
Application of Section 196(2) of Code of Criminal Procedure:
The defense contended that the trial court could not have taken cognizance of the offence under Section 120B IPC without the consent of the State Government or District Magistrate. However, the Court ruled that since the offences were punishable with imprisonment exceeding two years, Section 196(2) did not apply, allowing the trial court to pass the sentence.
Presumption of guilt under Section 4 of the Act:
The defense argued that the presumption of guilt under Section 4 of the Act did not apply to an offence under Section 5(1)(d) of the Act as the bribe was not received by A-1 personally. The Court rejected this argument, emphasizing that the section covers receiving bribes directly or indirectly, and not just personal receipt.
Interpretation of Section 5(1)(d) of the Act:
The defense claimed that the bribe was not received to render any service with the Government, but to return a document, which was not an act of the Government. The Court disagreed, stating that the act of returning the document was an official duty, making the demand for a bribe an offence under Section 161 IPC.
Involvement of A-2 in conspiracy:
The defense argued that A-2, though present during the bribe demand, was not part of the conspiracy as he did not benefit from the money. The Court rejected this, noting that A-2's presence and actions indicated knowledge and complicity in the bribe transaction, leading to his guilt.
Support from case laws:
The defense cited various judgments to support their arguments, but the Court found them inapplicable to the present case due to differing facts and circumstances, hence providing no assistance to the appellants.
Leniency in sentencing:
Considering the age and circumstances of the appellants, the Court reduced the sentence imposed by the High Court to 6 months, taking into account the loss of employment and prolonged litigation. The appeals were partly allowed, with the appellants required to surrender and their bail-bonds canceled.
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2003 (12) TMI 672
Issues Involved:
1. Redemption of mortgage.
2. Subrogation rights of redeeming co-mortgagor.
3. Limitation period for filing suit.
4. Maintainability of suit for partition and possession.
5. Applicability of Section 92 of the Transfer of Property Act.
6. Impact of family partition on mortgage redemption.
Detailed Analysis:
1. Redemption of Mortgage:
The property in question was subject to an usufructuary mortgage, and after a partition, one of the co-mortgagors (defendant No. 1) redeemed the property by paying the full mortgage amount. The plaintiff, an assignee from certain non-redeeming co-mortgagors, filed a suit in 1971 seeking declaration of title and recovery of possession or, alternatively, partition.
2. Subrogation Rights of Redeeming Co-Mortgagor:
The main legal issue was whether the redeeming co-mortgagor (defendant No. 1) could claim the rights of the original mortgagee and whether the plaintiff's suit was maintainable without a specific prayer for redemption. The court examined Section 92 of the Transfer of Property Act, which deals with subrogation by operation of law, and concluded that the redeeming co-mortgagor does not become a mortgagee but holds certain rights akin to those of the mortgagee for the purpose of reimbursement.
3. Limitation Period for Filing Suit:
The High Court initially held that the suit was essentially one for redemption and was barred by limitation under Article 148 of the Limitation Act, 1908. However, the Supreme Court clarified that the suit was primarily for partition and the limitation period should be governed by Article 120 of the Limitation Act, 1908, which pertains to suits for partition.
4. Maintainability of Suit for Partition and Possession:
The Supreme Court held that a suit for partition filed by a co-owner-cum-co-mortgagor is maintainable and the limitation for such a suit would be the period prescribed for partition suits. The equitable right of the redeeming co-mortgagor to seek reimbursement does not convert the suit into one for contribution or redemption.
5. Applicability of Section 92 of the Transfer of Property Act:
The court emphasized that Section 92, which deals with subrogation, does not create a mortgagee-mortgagor relationship between co-mortgagors. Instead, it provides the redeeming co-mortgagor with rights akin to those of the mortgagee for the purpose of reimbursement. The redeeming co-mortgagor can exercise rights of foreclosure or sale as if he were the mortgagee, but this does not make him a mortgagee.
6. Impact of Family Partition on Mortgage Redemption:
The court noted that whether the family was joint or had partitioned before the redemption did not affect the legal principles applicable. The redeeming co-mortgagor's rights and the non-redeeming co-mortgagor's obligations remain the same irrespective of their status as joint tenants or tenants-in-common.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the trial court's decree. The suit was held to be within limitation, and the plaintiff was entitled to a preliminary decree for partition. The court also noted that during the final decree stage, practical difficulties in dividing the property could be addressed, potentially through alternative modes of satisfying the parties' claims.
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2003 (12) TMI 671
Issues:
1. Maintainability of the complaint under Section 138 of the Negotiable Instruments Act after the death of the payee.
2. Interpretation of legal rights of the legal heir of the deceased payee in filing a complaint under Section 138 of the NI Act.
3. Consideration of legal principles regarding the status of legal heirs stepping into the shoes of the deceased payee in cases of dishonored cheques.
Analysis:
1. The case involved a Criminal Revision Petition against the order passed by the Sessions Judge, which dismissed a complaint filed under Section 138 of the Negotiable Instruments Act. The complaint was filed by the wife of the deceased payee after the cheque issued by the accused was dishonored. The accused contended that the criminal action could not be initiated after the death of the payee.
2. The revision petitioner argued that the complaint was maintainable as the complainant, being the wife of the deceased payee, had the legal right to file the complaint under Section 138. The petitioner relied on legal precedents supporting the rights of legal heirs to pursue such cases even after the death of the payee.
3. On the other hand, the respondent contended that the complaint was not maintainable after the death of the payee and cited a legal decision to support this argument. The respondent emphasized that the legal action under Section 138 ceases upon the death of the payee and distinguished the cases cited by the petitioner.
4. The Court analyzed the arguments presented by both parties and reviewed the facts of the case. It noted that the complainant, as the legal heir of the deceased payee, had presented the dishonored cheque and initiated legal proceedings. The Court deliberated on the legal implications of the complainant's status as a legal heir in pursuing the case under Section 138.
5. Referring to legal precedents and statutory provisions of the Negotiable Instruments Act, the Court concluded that the legal heir of the deceased payee could be considered as stepping into the shoes of the payee for practical purposes. The Court emphasized the importance of proving legal representation in such cases when disputed by the accused.
6. Based on the analysis of the case, legal principles, and settled law, the Court held that the complaint filed by the legal heir before the Magistrate was in accordance with the law. The Court found that the Sessions Judge had not considered the facts in light of established legal principles and therefore set aside the impugned order, restoring the complaint for further proceedings.
7. In the final judgment, the Court allowed the petition, setting aside the order of the Sessions Judge and directing the Magistrate to proceed with the case in accordance with the law. The decision clarified the legal standing of legal heirs in cases involving dishonored cheques and emphasized the importance of adhering to statutory provisions and legal principles in such matters.
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2003 (12) TMI 670
Issues:
Setting aside of sale in execution of a decree under Order 21 Rule 89 of CPC.
Detailed Analysis:
Issue: Setting aside of sale under Order 21 Rule 89 of CPC
The case involved the execution of a decree where the properties of the Petitioner-Judgment Debtor were brought for sale. The Petitioner paid the decretal amount and filed objections for confirmation of sale. The executing Court directed the Petitioner to pay solatium to the Auction Purchaser, who refused to accept it. Subsequently, the Auction Purchaser filed an application for confirmation of sale. The executing Court set aside the sale, closing the execution proceedings. On appeal, the first Appellate Court reversed the decision. The High Court dismissed the revision petition, stating that an objection cannot be treated as an application under Order 21 Rule 89, and the deposit was not made within the prescribed date. The Supreme Court considered whether the setting aside of the sale by the executing Court was correct.
The Supreme Court analyzed the provisions of Order 21 Rule 89(1) of CPC, which allows an application to set aside a sale on deposit. The Court highlighted the conditions to be met for setting aside a sale under Rule 89(1) and the follow-up action provided under Rule 92(2) of Order 21. The Court examined various judicial precedents that presented conflicting views on whether a mere deposit of money can be considered an application to set aside a sale.
The Court discussed the purpose of Rule 89 of Order 21, emphasizing that it provides a last opportunity for the Judgment Debtor to prevent the sale and save their property from dispossession. The Court clarified that compliance with the conditions of Rule 89 leads to the Court setting aside the sale under Rule 92(2). The Court noted that the Rule does not mandate a specific form of application and even a memo with a prayer for setting aside the sale is deemed sufficient compliance.
In the present case, the Petitioner-Judgment Debtor paid the decree amount to the Decree Holder within the stipulated period and filed objections for setting aside the sale. The Court observed that the payment fulfilled the requirements under Rule 89(1)(b) and the subsequent deposit of solatium with the Court met the second requirement under Rule 89(1)(a). The Court emphasized that the objection could be treated as an application to set aside the sale, and the executing Court's decision was in line with the law. Therefore, the Supreme Court allowed the appeal, setting aside the orders of the High Court and the first Appellate Court, and restoring the order of the executing Court to close the execution proceedings.
This detailed analysis of the legal judgment provides a comprehensive understanding of the issues involved and the Supreme Court's decision regarding the setting aside of a sale in execution of a decree under Order 21 Rule 89 of CPC.
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2003 (12) TMI 669
Issues:
1. Timeliness of filing appeals under Central Excise Act.
2. Consideration of appeals on merits.
3. Condonation of delay in filing appeals.
Analysis:
Issue 1: Timeliness of filing appeals under Central Excise Act
The petitioners, manufacturers of M.S. Ingots and non-alloyed steel, were aggrieved by the rejection of their appeals by the Commissioner of Central Excise (Appeals) on grounds of being belated. The petitioners claimed to have sent the appeals by post under certificate of posting within the condonable period under Section 35 of the Central Excise Act, 1944. However, the 1st respondent contended that the date of receipt of appeals in the office of the Commissioner of Central Excise (Appeals) is crucial for determining the period of limitation. Citing precedents from Bombay, Calcutta, and Gujarat High Courts, the 1st respondent held that the appeals were filed beyond the condonable period.
Issue 2: Consideration of appeals on merits
The learned counsel for the petitioners argued that they had a strong case in the appeals and urged the court to direct the 1st respondent to consider the appeal on its merits. The court noted that the 1st respondent did not assess whether there were sufficient grounds to condone the delay in filing the appeals, emphasizing the need to determine if the appeals could be treated as filed within time.
Issue 3: Condonation of delay in filing appeals
Reference was made to judgments by the Gujarat High Court and the Allahabad High Court, which held that appeals dispatched before the expiry of the limitation period should be deemed filed in time, even if received belatedly. The court highlighted the importance of substantial justice over technical considerations, citing a previous decision. Despite the belated submission of appeal copies, the court directed the appellate authority to review the appeals on their merits, setting aside the impugned order.
In conclusion, the High Court allowed the writ petition, directing the appellate authority to reconsider the appeals rejected due to timeliness issues, emphasizing the importance of substantive justice in the adjudication process.
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